| Statutory Sources. 
of 0 


“New York City Government 


‘Prepared for the 


NEW YORK CHARTER COMMISSION . 


‘by | 


| ARTHUR W. MACMAHON 


Department of Public Law, Columbia University 


New: Vor Charter Commission 
_ HENRY DEFOREST BALDWIN, Chairman © 


JOHN Fr ‘HYLAN, Mayr =—sCLOUIS. L, DELAFIELD 
oy CHARLES L. CRAIG, Comptroller JOSEPH M. LEVINE 


oe ‘HOWARD LEE McBAIN | 
“ EDWARD RIEGELMANN, HERMAN A. METZ 


President, Borough of Brooklyn ‘WILLIAM BARCLAY PARSONS 
JOHN J. KELLER, Alderman FRANK L. POLK. 


_ |] EDWARD M. BASSETT =—s ARTHUR S. SOMERS 


: GEORGE CROMWELL -H. PUSHAE WILLIAMS 
, a FRANKLIN W. M. CUTCHEON, Counsel 


Bei a eee ae UINIVERSTERCO0L be te ae Ge 
BOM aly Nee NRE coher ie hua 
* ~ AT URBANA- GuweAIQN ie a) aaa as 
BOOKSTACKS — SR i 

a * 


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https://archive.org/details/statutorysourcesOOmacm 


The Statutory Sources 


of 


New York City Government 


By 
ARTHUR W. MACMAHON 


Department of Public Law; Columbia University 


Submitted in partial fulfillment of the requirements for the degree of 
Doctor of Philosophy, in the Faculty of Political 
Science, Columbia University. 


NEW YORK CITY 
1923 


Copyright, 1923 
ARTHUR W. MACMAHON 


PREFATORY NOTE 


Although I am well aware of the restricted appeal of this 
monograph, I leave it with a vivid sense of the wide, practical 
consequences of the problem that it treats. A deplorable wastage 
of effort results from the century-old tangle of laws that sur- 
round the government of New York City. I do not refer to 
_the several miscarried attempts at charter revision in the past, 
although no one can read without depression the story of the 
five years of continuous but largely fruitless work after 1907; 
-I am thinking rather of the constant inconvenience, delay and 
burden upon both city and state authorities implied in the nearly 
sixteen hundred changes in the laws affecting New York City 
that have been made since the last reorganization of the charter 
in 1901; I am thinking even more of the effect of prolixity and 
uncertainty in the statutory sources of New York City govern- 
ment in causing an unseen drain of time and energy in countless 
administrative decisions, public actions, and even in uncounted 
wholly private affairs. I shall be satisfied if this monograph 
aids slightly in disclosing the problem. 

My treatment confines itself to statutory remedies. The fact 
that I have referred only incidentally to what is called constitu- 
tional home rule is not due to neglect but to a recognition of 
the magnitude of that complicated and separate problem. Re- 
gardless of any readjustment of the constitutional relations of 
state and city, the condition of the legal sources of New York 
City government would still present a problem and demand a 


remedy. 
A. W. M. 


939249 


TABLE OF CONTENTS. 


CHAPTER IL 
THE Sources IN EvoLuTIon. 

| PAGE 
Pene@m GOMDICKIMCS SUIT VEVCML Nee. ote ee aoe eee wt che Gatien ce gers 2 
BlNGM RCVIGECINLAWSEOLO LOL CO foc cv ce dete eter in os boot eee aden tes 4 

The Statutory Sources of the City’s Government Permitted to 
SCANEL PLO LO=L ORL ans oa ta Rene Oe ae SY eed eacen de wha uites 5 
‘Due News yore Consolidation: Act of 18820010: ca oe. Cone d ee cues. 8 
PPG City Sit Lad Waa DCALLELS I) AA SAITl oe aie a ints wares owe cared hotlines tute ole ale 10 
The Greater New York Charter Fails to Integrate the Law...... 15 
Charter Revision in 1901 Leaves the Situation Unchanged........ 18 
Special Laws that have not Amended the Charter................ 18 

Adverse Comment on the Condition of the Statutory Sources of 
Thee Cityise GO VErNMent en. 5 nro accn ee atl oe Cally cate eames 20 
Peconsoucation.o. Local ‘Laws Advocated. c0os.4 oe osc baces oes « (hs) 
Aeatugest) Compilation tinally, Completed pyar. ve eles cs cy ee elas fas 

CHAPTER II. 
Tue Sources TopAY—SPEcIAL City Laws. 

Provisions for Repeal in the Charters of 1897 and 1901.......... 28 
Peat plicse Or Olle keped ie Dea NItSSIOlles. sect. oe Saale ile we ode en eS Vs Jc 
The Present Charter in Relation to Laws Prior to 1882.......... 35 

Inconclusiveness of Express Repealers in Connection with the Con- 
BONA OL .CUM OL a LOG ate os Weiter ys oe hew oe sib o's va elela aie 36 
Conflicting Evidences of Legislative Intent... . e005... 00. c0 cee 38 
Cases that Point to the Survival of Omitted Legislation.......... 39 
Cases that Point to the Repeal of Omitted Legislation.......... 42 
nes woctriie sath Coditication. CONnstlteds. -3)e pic eee os coe eee Seance eit 48 

The Legislative Heritage of Communities Absorbed in Greater 
INCU VOLN Meehan wet ie chs rd oe acd Gouciee our eatp tas Cie wae ay wh 52 


The Royal Grants as Continuing Sources of City Government.... 56 


CHAPTER III. 
THE Sources TopAY—GENERAL LAws. 


The Problem of Parallel General and Special Legislation an Una- 
vanktia HemhO CMP CatiCtyee cc ii siceed ou din tetas vce cose arntere ie a eee 59 

Pee) Sta PITICEG EE VU LUSTMICNE ©. as oS sik cece cc nse ge wes We Oe See e's 59 

ior AMOUCAUONSIE IIe W -Y OFK States occ soc ce ns Suede asee ce bevales 60 


vi CONTENTS 


Its Application to the General City Law, the General Municipal Law, 

and. the ‘Civil Service Law Gol es ge cen ge ner, eee oe 
A’ Decade's. Lesislation examined in 725025 ose s ee ee ie eee 
The Use of Classification of Cities in the Consolidated Laws...... 
Legislation Affecting Judicial Organization, Procedure, and Penalties 
Lepislation tor (Counties 0 5s ae wae eae ne. pee ok ee ear 
The Problem of a Better Adjustment of Special and General Law.. 
"Phe Common. haw sas'a Sources. <2 5 eee se ee a ee ee 
Summary of the Present Sources of New York City Government.... 


CHAPTER IV. — 


ATTEMPTS TO EMPOWER THE LocAL AUTHORITIES TO CHANGE THE 
SOURCES “E2009 ARV EGA ce aR tae at cece ee oe ee 
I. The Scheme of a General Grant of Power Superimposed on 
Existing Charters; The Municipal Empowering Act of 1913 
Did the Municipal Empowering Act confer Local Power to Change 


Existing awit eRe ica Cae eee eth oe oe ee ee ee eee 
Has the Municipal Empowering Act Enlarged the Scope of Local 
Action “in: any “Respett fdew encase «aot aee aee ee ee 
II. Conditional Repeal and the Replacement of Charter Provisions 
Dy ‘Ordifiance ey oP ek Eee Pd aie ee ee rae 
(1) The Greater New York Charter and the Building Code........ 
The Validity of Conditional Repeal Assumed by the Courts...... 
An. Element *of “Uncertainty Created: ..04cs2 0) oaks) sane eee 


Conclusion regarding the Use of Conditional Repeal under the 

Charter of 1897 )\:5 S92 ae ice ee oe Oe ee ee ee 
(2) Conditional Repeal of Designated Charter Sections, 1901.... 
The Validity of Conditional Repeal Again Assumed by the Courts.. 
But Serious Uncertainties Ascam “Created ues re kee ee 
The Uncertain Status of the Charter Sections in Question.......... 
Conclusion Regarding the Use of Conditional Repeal under the 

Chatter of) M00U oe yao lee eet Ce eee 
(3) Conditional Repeal in the Grant of Power to Change Salaries.. 
The -Evolution of the Provision 
Early Ambiguities.0547 0008.5 Tages ehtoass wi ie pee ee eee nee 
The Uncertain Scope of the Provision as Revised in 1901 
Proposals to Enlarge’ Local Power over Salaries......(2.5..<55.008 
The Existing Provision as Precedent and Warning................ 
III. Proposed Application of Conditional Repeal in a Blanket Grant 

of Power to Reorganize Departments ..573)2.-..s pee o- sae 
Judicial Construction of the Optional City Government Law in its 

Relation to Local Power over the Statutory Sources of 

Administrative Organization 


eer eteeeeereeeseeeeweceereereee eevee ees 


ceecvoeceev er 


eeceeeererereeere ere eeaeee eee e eee eee 


83 


CONTENTS vii 


CHAPTER Vv. 
THE PROBLEM OF SIMPLIFICATION. 

PATE OCOCLOEY ade cee nee Uo aloe Mc cla c be eens Bue hae Ate eee 130 
Survey of Alternative Methods of Simplifying the Statutory Sources 

OreNewYOtks Gily Goveriinent. sro. wer awewen ete vane ae 131 
(I) The Old Method of Blanket Repeal of Inconsistent and Blanket 

Continuance: ote Consistent, Lawes... ect acne nei eues On eas 133 
(II) The Outright Repeal of All Prior Law Omitted from a New 

CHArCere etek tek eat nn hs See eNO N Nag cere dan wade 135 
(III) The Disposition of Prior Law through Some Form of Con- 

Gdiviohale Repedleue foe oe cia ea eo oes ue ees See re eas 138 
(A) Conditional Repeal through an Administrative Code........ 140 


3) Conditional Repeal of All Special Laws Affecting the City 
Government, without Detailed Segregation by the Legisla- 
ture of the Parts Subject to Local Control and without 
PE Miiow Wetter e aeace Orden coe ee u.d cerco bie wae owe meee we 148 
(C) Conditional Repeal of All Special Laws Affecting the City 
Government, Contingently upon the Preparation of a Local 


Consolidation of the Useful Provisions Therein .......... 149 
MEQUIGAUISi Cte ee eh ee a te et Ie orc CNS Ue ache oi de www ee 151 
APPENDIX: 

An wewnhy ork City Lecisiations 1900-1921 fo cc cic cec es teeacesecees 155 
B. Constitutional Home Rule Amendments in the New York 

PCat VesnL 9 Pir Si meee natn, resp aad ae teas cose ee ees § 156 

Paty SACI Um CC Pe Seer ee aan re eer ns Met Mela eve dis ke'se 6 @ 159 


ere Pie PN eer ew won te ae One's oka ce away eh ire hv sees whee 162 


i ' he ‘ 


hy 


CHAPTER I. 


THE SOURCES IN EVOLUTION. 


The Complexities Surveyed—The Revised Laws of 1813—The 
Statutory Sources of the City’s Government Permitted to Scatter, 
1813-1882—The New York Consolidation Act of 1882—The City’s 
Law Scatters Again—The Greater New York Charter Fails to 
Integrate the Law—Charter Revision in 1901 Leaves the Situation 
Unchanged—Special Laws That Have Not Amended the Charter 
—Adverse Comment on the Condition of the Statutory Sources of 
the City’s Government—A Consolidation of Local Laws Advocated 
—A Digest Compilation Finally Completed. 


In the movement for charter revision, the condition of the 
statutory sources of the city government has hardly been a less 
important consideration than defects in governmental structure. 
Less even than the latter, however, the problem of the make-up 
of the charter has been incapable of capturing public attention. 
This has been partly the reason why charter revision has never 
aroused enough popular support to float its bulk over the shoals 
of political opposition. Yet the nature of the charter as an in- 
strument—the condition of the sources of the city government in 
law, as distinguished from the machinery which they create— 
has a double significance. First, it is important that the charter 
shall declare what it intends to say with as little ambiguity and 
confusion of arrangement as possible and with the minimum 
invitation to litigation, on the one hand, or to time-taking and 
cumbersome explanatory amendments by the legislature on the 
other. It is important that the sources of law affecting the city 
shall be integrated at least in the sense that all active or poten- 
tially active sources shall be known, even if not physically as- 
sembled, and that in so far as possible the relation of old and 
new law on the same subject shall be expressly clarified. Sec- 
ond, the make-up of the charter is simply another term for the 
scope of local power. The degree of charter detail determines 
the extent to which the city authorities are dependent upon 
constant and minute control by state legislation. More than 
that, since a charter usually assigns powers not to a city as a 
whole but in the main to particular city agencies, it determines 


2 STATUTORY SOURCES OF NEW YORK 


how much flexibility in the every day processes of administration 
the city authorities will enjoy. 


The Complexittes Surveyed. 


The complexities in the present make-up of the charter may 
first be briefly surveyed. (1) The charter, in the narrow and 
formal sense of the act of 1901 and the subsequent statutes 
which have amended it in terms, contains numerous errors of 
expression and of arrangement in its half-million words (2) 
What is called the charter, however, is in fact only a part of the 
charter; it does not include all of the acts relating specially to 
the city and its government. A mass of special acts antedated 
the charter and were neither included in it nor repealed by it. 
Since its enactment, their number has been added to constantly. 
(3) In addition, the city government is conditioned by provisions 
in the general laws, notably the General City Law, the General 
Municipal Law, the Education Law, the Civil Service Law, the 
Election Law, laws affecting cities of the first class, the Rapid 
Transit Act, the bodies of law which govern the administration 
of justice in its several phases, as well as by other general acts 
on particular subjects, some of which, although in form general, 
apply almost peculiarly to New York City. 

The complexities of the situation do not stop with mere lack 
of order and unity. Uncertainty also exists. As a usual prac- 
tice, charter revision in the past has not repealed all prior legis- 


* Provisions regarding procedure in the acquisition of property are 
found in the charter both in ch. XVII, Title 4 (repealed and enacted 
anew by L. 1915, ch. 606) and in ch. XXI, secs. 1431-53 (repealed and 
enacted anew by L. 1915, ch. 596). These two sources of law are sufficiently 
similar to warrant Ash, The Greater New York Charter, Annot., 4th ed., 
in giving only one set of annotations to cover both. Turning to another 
illustration, it is perhaps a superficial confusion of arrangement that has 
put in ch. XXIII, entitled vaguely “General Statutes,” under Title 3 
thereof, material as disparate as a provision on the Sunday closing of 
barber shops (sec. 1535) and the vital provision regarding the power of 
heads of departments over their subordinates (sec. 1543). The fact that 
the charter now has two sections numbered 165, added by L. 1905, chs. 517 
and 583, cannot be charged as a fault against the original charter, but 
the confusion which can follow upon even as slight an error as this is 
illustrated in the omission of one of these sections from the current Ash 
edition of the charter, which has an almost official status. 


THE SOURCES IN EVOLUTION 3 


lation; it has repealed in general terms whatever has been incon- 
sistent and it has continued the rest. Inconsistency is not dis- 
covered until litigation arises. It is only after a point has been 
before the courts that one can say with certainty what the charter 
does provide. Such clarifying litigation proceeds slowly, as the 
exigencies of everyday operation furnish appropriate test cases. 
This tedious working out of the meaning of blanket repeals of 
inconsistent law is sufficiently clouded even where the legisla- 
ture’s intention to repeal is obvious. There are respects, how- 
_ ever, in which the legislative intent regarding the repeal of early 
laws affecting the City of New York is itself in doubt. Uncer- 
tainty also inheres in the relation between special and general 
legislation, although here some fairly clear rules facilitate the 
adjustment. 

How has this confused and uncertain condition in the statu- 
tory sources of New York City government arisen? 

Before considering in some detail the historical reasons for 
the condition stated, the underlying causes may be anticipated by 
noting certain tendencies which have characterized charter revi- 
sion in the past. (1) One factor has been caution. The early 
charter grants were broad and vague. Every possible privilege 
or power implicit in these grants was jealously guarded by a 
city which was in a very real sense a corporate business enter- 
prise.1 With this view of the city’s rights and interests, all exist- 
ing provisions of law were treasured against future needs. As 
the bulk of legislation affecting the city increased and as the 
property interests of the city ramified, the only safe course has 
seemed to lie in resort to the device of a general repeal of incon- 
sistent legislation and the blanket continuance of all consistent 
prior law. (2) Haste in charter revision has always been a con- 
tributing factor. Even if the will to risk a more courageous pol- 
icy in disencumbering the city of earlier laws had existed, tine 


*J. S. Davis, Essays in the Earlier History of American Corporations 
(1917), p. 49, which begins its treatment with the remark, “For con- 
venience, nevertheless, we may somewhat arbitrarily set off the public 
corporations from the private ones, applying a distinction then unrecog- 
nized.” On the early history of the ferries, see A. E. Peterson, New York 
as an Eighteenth Century Municipality, Prior to 1731 (1917), pp. 124-50. 
See also G. W. Edwards, New York as an Eighteenth Century Munic- 
tpality, 1731-1776 (1917), pp. 85, 93-4, 172-89. 


4 STATUTORY SOURCES OF NEW YORK 


has never sufficed for the excavation and sifting of the legislation 
which, layer on layer, has long surrounded the charter. 


The Revised Laws of 1813. 


The earliest,1 and for nearly three-quarters of a century the 
only, attempt to draw together and to knit into a unified whole 
the scattered laws relating to the City of New York was carried 
out in 1813. It was a part merely of a general codification of 
the statutes of the state which has been popularly associated 
with the names of the revisers, Van Ness and Woodworth.2 One 
of the chapters which came from their hands was “an act to 
reduce several laws, relating particularly to the City of New 
York, into one act.”® Unlike the “ Kent and Radcliff”? compila- 
tion of 1802, from which, along with the session laws of subse- 
quent years, it drew its material, it did not set down whole 
statutes in their original form. It went further and, although 
deliberately avoiding substantial change, resolved their contents 
into a single act of three hundred and fifteen consecutive sections. 

The revision of 1813 was not in any complete sense a charter. 
The royal grants remained outside it; the Montgomerie charter 
of 1731,5 although already supplanted in large part by statutory 


*The “Jones and Varick revision,’ authorized by L. 1786, ch. 35, and 
carried out in a series of acts on various subjects passed during 1787, did 
not touch the City of New York. The “Kent and Radcliff compilation,” 
provided for by L. 1800, ch. 70, and L. 1801, ch. 190, and published in 
two volumes, 1801-2, dealt with New York City legislation, Vol. II, pp. 
89-146, but was in no sense a revision; it merely reprinted whole laws 
seriatim. 

*+R. L., 1813. The revision was authorized by L. 1811, ch. 150, appoint- 
ing and directing Van Ness and Woodworth “to reduce into one act 
all the different acts or parts of acts which shall or may relate to the same 
subject or place, which in their judgment shall be most useful and render 
the said acts most plain and easily to be understood; and that in such 
acts they omit every or any part or parts of the acts before passed as 
shall have been previously repealed, or shall have expired by their own 
limitation.” L. 1813, ch. 195, authorized the piiblication of the revision. 

°2 R. L., 1813, ch. 86, pp. 342-460, passed April 9, ey 

“See the note which followed the act, 2 R. L., p. 460, listing the 
sources in “K & R” (the compilation of 1802) and # yy? (Webster’s 
edition of session laws, vols. 3-6, inclusive). The derivation of particular 
sections was not indicated. 

*See infra, p. 56, on the continuing effect of the royal charters. 


THE SOURCES IN EVOLUTION 5 


provisions, was still the core of the city’s government. The codi- 
fiers of 1813 did, however, weave together the active provisions 
of some eighty-nine acts passed by the provincial assembly, 1691- 
1775,1 and of one hundred and fifty-two special statutes affecting 
New York City, passed between 1778 and the revision of 1813.2 

Codification raises a problem of repeal which is discussed be- 
low,®? in connection with the Consolidation Act of 1882; it need 
not be dwelt upon at this point. Ch. 86 of the Revised Laws ot 
1813 was silent alike regarding repeal and continuance of prior 
legislation in relation to New York City. A repealer which cov- 
ered the entire revision was, however, supplied by a separate act? 
passed a few days later; this repealed “all acts and parts of acts 
heretofore passed by the legislature of this state which come 
within the purview or operation of any of the acts passed during 
the present session of the legislature, commonly called the re- 
vised acts.” Aside from this express blanket repeal and from 
the indication of legislative intent afforded in the instruction to 
the revisers to omit obsolete legislation, the repeal at least of 
Colonial legislation was made doubly sure by the provision of 
Dec. 10, 1828, that “no statute passed by the government of the 
late colony of New York shall be considered a law of the State.’’5 


The Statutory Sources of the Csty’s Government Permitted to 
Scatter, 1813-1882. 


Not until 1882 was the attempt of 1813 repeated. During the 
intervening years, the legislation scattered unchecked, and, fall- 


* The computation is based on A Compilation of the Laws of the State 
of New York relating particularly to the City of New York, prepared 
at the request of the Common Council by Henry E. Davies, 1855, pp. 2-12. 
This compilation was, of course, without legal status or effect. Of the 
89 acts listed by title, several affected other localities as well as New 
York City, several involved essentially private grants within the city, and 
a number directly imposed trade regulations. For a general statement, 
see G. W. Edwards, New York as an Eighteenth Century Municipality, 
1731-1776 (1917), pp. 34-35. 

* Statutory Record of Unconsolidated Laws (Special, Private and 
Local Statutes) of the State of New York (1911), vol. 2, in Index, at 
p. 90, note. 

* See infra, pp. 35-52. 

©) 1813; ch. 202, passed April. 13. 

°2 Rev. Stat., p. 779, sec. 4. 


6 STATUTORY SOURCES OF NEW YORK 


ing layer on layer, rested where it fell. The one successful revi- 
sion of the statutes of the State generally, in 1829-30, evaded 
the task of consolidating the laws applicable to New York City. 
“The local laws relating to New York,’ a note explained, “are 
exceedingly numerous; a few only have been selected, which are 
of general and public importance.”! There was no further gen- 
eral revision of the State laws until the Consolidated Laws were 
at last achieved in 1909. The magnitude and the delicacy of the 
task, with attendant difficulty and inertia, increased as rapidly as 
the need for it. The actual accomplishments of the almost con- 
tinuous efforts that followed the constitution of 1846 covered 
only a few particular fields of the law.? 

The revision of 1813% was assumed to continue, as part of the 
foundation, by the notable charter alterations of 1830, 1849,5 


13 Rev. Stat., 424. The few statutes relating to New York are given 
pp. 424-442. This revision was authorized by L. 1824, ch. 336 and L. 1825, 
ch. 324. It was carried out in acts passed in 1827 and 1828, published in 
1829 and 1830. The Revised Statutes ran through a number of editions, 
the 9th of which appeared in 1896. Strictly speaking, the revision of 
1827-8 was essentially static and these enlargements were without official 
standing. On this point see Matter of Norton (1899), 39 App. Div., 369. 

7A review of the course of consolidation generally in New York State 
may throw light indirectly upon the tardiness with which New York City 
legislation was revised. The Constitution of 1846, Art. 1, sec. 17, directed 
that “the Legislature, at its first session after the adoption of this Con- 
stitution, shall appoint three commissioners, whose duty it shall be to 
reduce into a written and systematic code the whole body of the law 
* * *” Such a commission was constituted under L. 1846, ch. 59. 
A Code of Procedure (the “Field Code” so-called) was adopted 1848-9. 
The Code of Remedial Justice, adopted in 1876, was supplanted in the next 
year by the Code of Civil Procedure. Progress was slow; the Code of 
Criminal Procedure was first reported in 1849, the Penal Code in 1865, 
yet they were not adopted until 1881. A revision of the banking laws took 
place in 1882. The Statutory Revision Commission was set up by L. 1889, 
ch. 289, and was continued by L. 1890, ch. 313. Before its abolition under 
L. 1900, ch. 664, some 48 general laws had been adopted, accomplishing a 
partial revision. The permanent Board of Statutory Consolidation, estab- 
lished by L. 1904, ch. 664, accomplished a complete revision of the general 
laws in the enactment of the Consolidated Laws of 1909. The history of 
codification from the beginning is reviewed in the Report of the Board of 
Statutory Consolidation, Feb. 24, 1908, N. Y. Ass. Docs., 1908, no. 50. 

* As an example of the continuing applicability of ch. 86 of the Revised 
Laws of 1813, see Matter of Commissioners of Central Park, 50 N. Y., 
493, 495 (1872), which \said “The law of 1813 (2 R. L,, 408), 
regulating the opening and laying out of streets, etc., in the City of New 
York, is still in force, and except as modified by subsequent legislation, 
prescribes the forms of procedure in all cases.” 

oT... 18302 ch: size. 

°L. 1849, ch. 187. 


THE SOURCES*IN- EVOLUTION 7 


1857,1 1870,2 and 1873.3 Of these, only the three latter were 
charters in the strictly formal sense. The so-called “charters” 
of 1830 and 1849 were distinguished from many other charter 
amendments only by the relative importance of the changes they 
effected in the organization of city government. The act of 1830, 
although the first material modification in municipal structure 
since 1731, occupied a scant five pages in the session laws, slightly 
less than an act, placed by chance immediately after it, which in- 
corporated the Livingston County Bank in the village of Geneseo. 
The amendment of 1849 was double the length; but from the 
standpoint of the make-up of the charter it attempted to do no 
more. Both assumed the royal charters and a mass of subse- 
quent special acts; both were content to repeal in general terms 
whatever was inconsistent in prior law. The acts of 1857, 1870 
and 1873 were charters in the formal sense that they repeated the 
grant of corporate existence. They were, moreover, at once 
more detailed and more inclusive, Yet they, too, failed to clarify 
the sources of the city’s law. They did, it is true, expressly re- 
peal the important charter amendments which had intervened 
since 1830. For the rest, however, they expressly continued the 
Dongan and Montgomerie charters “so far as the same or either 
of them are now in force;”’ and their silence implied the con- 
tinuance of the consistent provisions of the body of law which 
had been gathered in 1813 and of uncounted special acts since 
that time. They stopped with the easy device of a blanket repeal 
of all acts or parts of acts inconsistent with their own terms. 

The only mitigating device in the years between 1813 and 1880 
was the occasional gathering and publication by the city govern- 
ment of the laws which were deemed of interest to it. At least 
four such collections were made.t Their inadequacy was two- 

*L. 1857, ch. 446. 

mbm ie/ 0: Chi 137. 
iL. 1873, ch. 335. 

“Laws of the State of New York relating particularly to the City of 
New York, published by the authority of the Corporation. (1827). Same 
title, 1833: this, however, included as a new feature a list of the titles 
of provincial and state acts prior to 1813. Compilation of the Laws of 
the State of New York, relating particularly to the City of New York, 
prepared at the request of the Common Council, by Henry E. Davies 
(1855). Same title, 1862, prepared by David T. Valentine. Prior to the 
revision of 1813, in 1805, the Common Council had ordered the printing, 


along with the charter, of acts of the legislature which had vested addi- 
tional power in the City. 


8 STATUTORY SOURCES OF NEW YORK 


fold. In the first place, they were mere compilations, crudely 
chronological and without even grouping by subject, let alone the 
elements of examination, comparison, and elimination. In the 
second place, in the nature of their city origin, they were quite 
without legal status. They were at the best a poor convenience. 
They facilitated access to the law but they did nothing to clarify it. 

In the meantime special legislation affecting the City of New 
York was passed at a rate which, by 1880, had reached about 
thirty-five acts each year.1 Nothing had effectively corrected 
the centrifugal tendencies which had long been at work on the 
sources of law relating’to the city. The result was a confusion of 
which the highest court of the state complained in 1875: “It is 
scarcely safe for any one to speak confidently of the exact con- 
dition of the law in respect to public improvements in the cities 
of New York and Brooklyn. The enactments in reference there- 
to have been modified, superseded and repealed so often and to 
such an extent, that it is difficult to ascertain just what statutes 
were in force at any particular time.” 


The New York City Consolidation Act of 1882. 


Such was the statutory disorder at which the Consolidation 
Act of 1882 was aimed. First authorized in 1879,3 the process 
was not completed until 1882. In practice, it involved two 
phases: compilation; then, revision. The execution of the plan 
was local. The corporation counsel was directed to appoint two 
persons who, with himself, were to prepare a compilation and 
revision for submission to the legislature of 1880. Only the 
compilation was ready at that time. It was printed in two vol- 
umes under the title, The Special and Local Laws Affecting Pub- 
lic Interests in the Céty of New York, and immediately given 
official status by an act which declared that “Said volumes shall 

*New York Senate Commtttee on Cities, Testimony, vol. 5, Appendix, 
pp. 468-471 (1891). 

*In the Matter of Kiernan (1875), 62 N. Y., 457, 459-60. 

*L. 1879, ch. 536 (June 20), “An Act to provide for a compilation 
and revision of the laws of the State of New York affecting public inter- 


ests in the City of New York.” The commissioners were George Bliss, 
Peter B. Olney, and William C. Whitney, corporation counsel, ex officio. 


THE SOURCES IN EVOLUTION 9 


be considered as containing presumptively all special and local 
laws. * * *”1 The commissioners proceeded under further 
authorization by acts of 1880? and 1881° and, taking their com- 
pilation as the basis, reported a revision on May 23, 1881,4 too 
late for legislative action. Their handiwork was passed on July 
1, 1882, as “an act to consolidate into one act and to declare the 
special and local laws affecting public interests in the City of 
New York,” to be known as the New York City Consolidation 
Act of 1882.5 

» The Consolidation Act was in a-very real sense a charter.® 
It made no substantive changes, to be sure. Its authors, point- 
ing to the fact that the legislative instructions under which they 
acted required that they should “not make any change in the mean- 
ing of existing laws,”’ reported, “ We have endeavored strictly 
to conform to this provision, though, of course, we have had some- 
times to adopt one of two or more possible constructions of a 


1L, 1880, ch. 595 (June 26), the full text reading, ‘The volume entitled 
‘The special and local laws affecting public interests in the City of New 
York,’ and printed by order of the Legislature of eighteen hundred and 
eighty, may be read in evidence and cited in any court or proceeding. Said 
volumes shall be considered as containing presumptively all special or 
local laws affecting public interests in force in the City of New York, 
on the first day of January, eighteen hundred and eighty, but this pre- 
sumption shall not be considered as extending to special laws relating to 
any corporation (other than the mayor, aldermen and commonalty), or 
to any association or society, nor shall the insertion or omission of any 
law relating to any such corporation be construed as in any manner 
affecting the corporate existence of any such corporation or its possession 
of its franchises.” 

?L. 1880, ch. 594 (June 26), ‘An act to provide for a_ revision of 
special and local laws affecting public interests in the city of New York.” 
It directed the appointment of commissioners by the corporation counsel ; 
in practice, the same personnel continued 

*L. 1881, ch. 572 (June 24), directing that, after making a preliminary 
report to the present session, the commissioners should continue their 
work, without further compensation, and submit the final revision at the 
opening of the 1882 session. 

* Available as Report of the Commissioners appointed under Chapter © 
594 of the Laws of.1880, with a Draft of the Revision of the Special and 
Local Laws affecting Public Interests in the City of New York (1881), 
Printed at the expense of the City. 

iL. 1882, ch. 410. 

*See, as an example of judicial comment, In re heh trees PSN Ve 
Supp., 454, 455 (1889), which remarks “ Ch. 410 of the Laws of 1882 was 
virtually a charter of the City of New York.” 

™L. 1880, ch. 494, 


10 STATUTORY SOURCES OF NEW YORK 


statute or statutes.”1 In point of inclusiveness, however, it was 
more truly a charter than those which’ had gone before or those 
which were to follow: Neither the Greater New York Charter 
of 1897 nor the Amendatory Act of 1901 repealed it. It remains 
an important part of the statutory basis of the city’s government. 
For this reason the problem that it left in regard to the complete- 
ness with which it repealed prior special legislation is postponed 
until, in the following chapter, the question of the present sources 
of the law relating to New York City is considered. 


The Ctty’s Law Scatters Agasn. 


Although the act remained, the principle that underlay the 
New York City Consolidation Act of 1882 was immediately com- 
promised and almost disregarded. Within less than a decade a 
prominent commentator upon the charter could say, ‘““When the 
statutory revision * * * was enacted in 1882, it was supposed 
that all laws thereafter passed, relating to New York City, would 
be in the form of amendments to the Consolidation Act. The 
legislature has, however, during the nine years since 1882, passed 
a vast number of laws, which, although relating to New York 
City solely, do not, in terms, amend any of the sections of the 
Consolidation Act. Many of these laws, however, supersede, 
modify or affect the provisions of the Consolidation Act.’ 

Why was a seemingly clear intent slighted and the charter 
allowed to unravel again? 

Carelessness was a factor that it is almost unnecessary to 
mention. It is impossible otherwise to explain how it came that 
the act of 18848 which abolished the confirmation of the mayor’s 


* Report of the Commissioners appointed under rede 494 of the 
Laws of 1880, with a Draft of the Revision, etc. (1881), p. 
tae New York City Consolidation Act, as in force re {801 (1891), 


p. 1 

T., 1884, ch. 43. The Charter Revision Commission of 1907 remarked: 
“Tt is a singular commentary upon the looseness with which laws affecting 
the city, both good and bad, have been passed, that the two statutes last 
referred to, so fundamentally affecting the powers of the Mayor, were 
not in the form of amendments of the city’s charter, but were special 
acts.” The reference is to L. 1884, ch. 43 and L. 1895, ch. 11, the latter 
conferring unlimited power of removal during the first 6 months. Report 
of the Charter Revision Commission of 1907 to the Governor, Nov. 30, 
1907, in N. Y. Sen. Docs., 1908, vol. 2, no. 10, p. 24. 


THE SOURCES IN EVOLUTION 11 


appointments, thus effecting one of the most vital changes in the 
form of city government during its whole history, was passed 
without reference to the Consolidation Act. This instance was 
outstanding but by no means single. Why, if it were not sheer 
carelessness, was the Consolidation Act disregarded in the terms 
of the statute of 1884! which made the comptroller elective, or the 
important act of 1890? which set up the commissionership of 
street improvements for the 23rd and 24th Wards and thus fore- 
shadowed the borough system of administration? Such cases 
were inexcusable. Not less blameworthy, although more ex- 
plicable, was the failure to relate to the Consolidation Act a much 
larger number of acts that dealt with very particular situations. 
These were in fact no more detailed than provisions which had 
already been placed in the Consolidation Act and which have 
been included in the charters since that time. 

But the cause was deeper than carelessness. The revisers 
themselves had excluded from the Consolidation Act a mass of 
prior enactments which were very particular in scope and tem- 
porary in effect. The report of the commissioners in 1881 stated 
their policy: 3 

““ * * * we have revised only what may be called the 
active laws; that is, those under which something remains 
to be done, either constantly or at some time or times; 
while we have omitted laws which were temporary in their 
purpose, and laws which, though the basis of the existing 
order of things—the foundation of existing rights—seem 
not properly the subject of revision, as nothing affirmative 
remains to be done under them. Such omitted laws em- 
brace those which define the location of existing streets 
and parks and the lines of the waterfront, which authorize 
the issue of bonds where the authority has been fully exer- 
cised, which authorize the erection of buildings or public 
improvements which have been fully completed, which 
give the city its interest in real estate, and other similar 
acts. They, like many general laws of the State, are 
necessary to be referred to from time to time, but, as we 


*L. 1884, ch. 73. 
*L. 1890, ch. 545. 


12 STATUTORY SOURCES OF NEW YORK 


have said, do not seem the proper subjects of revision. 
Indeed, a revision of some of them would tend to do harm 
rather than good.”? 


This was more than an invitation of example to subsequent 
legislatures. Temporary legislation necessarily continued, since 
the city’s dependence on the state had not been altered; and the 
Consolidation Act contained no sub-divisions, no categories, no 
receptacles, to which such new legislation could easily be related. 

The excluded temporary legislation was so in several senses. 
The quotation recited in the preceding paragraph has already 
indicated a distinction. It may be elaborated by a few illustra- 
tions from enactments after 1882 which were passed without 
reference to the Consolidation Act. (1) A few were entirely 
temporary, in the sense that, their operation having ceased, no 
continuing rights remained to vex the future. Such was the act 
of 1889? which authorized the completion of the north extension 
of the Metropolitan Museum of Art building. The examples 
were not numerous, however. Where private property is touched, 
a vestige of effect remains, however temporary may seem the 
operation of the statute, and a very largé portion of the special 
legislation during this period of municipal government concerned 
public improvements and thus touched private property. (2) A 
larger number of the acts, therefore, were temporary in a less 
complete sense. Both their affirmative operation and their direct 
effects ceased, but certain consequences remained potential. Such 
was a Statute of 1888 which extended the time for presenting 
damage suits arising in connection with a particular step in the 
expansion of the city’s water supply system. No one could see 
what remote events might some day turn upon the validity of one 
of these actions. (3) In other instances, the direct effect. per- 
sisted, although the affirmative action quickly terminated. Such 
was the act of 1886,* authorizing the use of a part of Riverside 
Park for the purpose of the Grant memorial; or, more clearly in 


*Report of the Commission appointed under Chapter 594 of the Laws 
of 1880, with a Draft of the Revision, etc. (1881), pp. iv-v. 

*L. 1889, ch. 513. 

*L. 1888, ch. 419. 

* 11886) che 338. 


THE SOURCES IN EVOLUTION 13 


point, that of 1888, which permitted the construction of arcades 
over the sidewalks around Madison Square Garden. 

That the illustrative acts which have just been cited were in 
some sense temporary, despite their permanent aspect, becomes 
clearer when they are compared with such a measure as that of 
18872 which assigned jurisdiction over certain streets to the de- 
partment of parks and which, for all its very particular scope, 
‘was as lasting as the general rule to which it made exception; or 
the series of acts® for the construction and maintenance of public 
baths ; or the act of 18854 which regulated the height of buildings 
in New York City—all of which, it may be added, were care- 
lessly passed without reference in terms to the Consolidation Act. 
In so far as the enactments that were left hanging in the air 
were really temporary in any of the three senses outlined in the 
preceding paragraph and did not merely seem temporary because 
of the narrow scope of their subject matter, the blame must be 
lodged upon the form of the original revision. 

A third reason why legislation over-spilled the Consolidation 
Act was the passage of acts which ostensibly at least applied to 
all cities within certain population groups.5 A favorite category 
was a population of 800,000 or over at the last decennial enumer- 


*L. 1888, ch. 534. 

te 4807, ch; 179. 

®L. 1883, ch. 425; L. 1887, chs. 209, 227; L: 1888, chs. 402, 411; L. 1889, 
ch. 452, this last providing for an ex officio board of bathing-house 
commissioners. 

*L. 1885, ch. 454. 

*Examples were: (1) applicable to cities of 500,000 or over, L. 1886, 
ch. 151, regulating the hours of labor on street and elevated railways; 
(2) 800,000 or over, L. 1884, ch. 182, fixing’ compensation of patrolmen 
in the police department; L. 1884, ch. 234, fixing the compensation of 
uniformed members of the fire department; L. 1885, ch. 555, fixing the 
compensation of police surgeons and doormen; Fe 1886, ch, 322, regulating 
the price of illuminating gas; L. 1887, ch. 565, fixing the salary of com- 
missioner of docks; (3) 900, 000 or over, L. 1887, ch. 218, fixing the com- 
pensation of chiefs of battalion in the fire department; (4) 1,000,000 or 
over, L. 1885, ch. 486, creating a relief fund in the police department; 
rs 1891, ch. ‘4, relating to rapid transit development and supervision; 
(5) 1,200, 000 or over, L. 1888, ch. 539, providing regulations for the 
protection of consumers of coal; (6) 1,250,000 or over, L. 1895, ch. 1006 
regulating procedure in street closing in a manner so fundamental that, 
since neither the charter of 1897 nor that of 1901 repealed this act, Ash, 
in his Greater New York Charter, Annot., 4th Ed., prints the act in amended 
form, after the charter proper, as part of the charter in a more realistic 
sense. This act, it is fair to add, was treated as a special city act in that 
it was submitted to New York City and was accepted by it. 


14 STATUTORY SOURCES OF NEW YORK 


ation. Brooklyn alone was within hailing distance of the old 
City of New York! In 1880 its population was 599,495, as com- 
pared with 1,206,299 in the Metropolis. The gap was closing, 
however, and their problems were becoming assimilated; by 1890 
Brooklyn’s population was 838,547. Even during the Eighties, 
therefore, it was not mere indirection to legislate for cities of 
800,000 and over. But why, in 1887, fix the salary of chiefs of 
battalion in the fire departments of places of 900,000 and upwards ? 
This smacked of a subterfuge that was as petty as it was legally 
unnecessary at a time when the state constitution did not prohibit 
special legislation for cities? To legislate in general terms on 
such a matter as rapid transit was doubtless wholesome; here 
the problem was at once fairly distinct from the routine of city 
business and a question for a long view ahead. In such cases it 
might pay to risk the element of confusion that is inherent be- 
tween general and special municipal legislation.2 But to regulate 
the minutiae of salary scales by legislation that was ostensibly 
general only added complications without bringing the cities one 
jot nearer to a municipal code. 

As a result of these influences—carelessness ; the difficulty of 
articulating temporary legislation; the formally general scope of 


*In 1880, Buffalo, the third city, had only 155,134 inhabitants; the 
combined populations of the 9 largest municipalities in the state, outside 
the metropolis and Brooklyn, was 491,369. It was not until 1920 that 
Buffalo passed the half-million mark, and then by a few thousands only. 

* The constitutional classification of cities and the provision of the 
local suspensory veto on special legislation were added in the new Consti- 
tution of 1894, Art. XII, sec. 2. The Constitution of 1846, aside from 
prohibiting the incorporation of villages by special act (Art. of Amend- 
ment III), expressly permitted special legislation for city purposes: 
“ Corporations * * * shall not be created by special act, except for munic- 
ipal purposes” (Art. VIII, sec. 1). The only express restriction was: 
“No private or local bill, which may be passed by the Legislature, shall 
embrace more than one subject, and that shall be expressed in the title.” 
For a further discussion, see infra, pp. 51, 70. The New York legislature 
may have been influenced by the example of states which, in the face of 
constitutional requirements of general legislation, were beginning to 
employ a classification of cities; among these states were Pennsylvania 
(Const., 1873, Art. III, sec. 7) and New Jersey (Const. Amendment, 1875, 
Art. IV, sec. 11). The principal reason for the enactment in New York 
State prior to 1894 of laws ostensibly applicable to groups of cities, 
however, was probably the fact that special legislation was being attacked 
and the legislature was instinctively utilizing whatever changes in form 
might serve to disarm the criticism. 

* For a discussion of this problem, see infra, p. 59. 


THE SOURCES IN EVOLUTION 15 


other measures—the cohesion which the Consolidation Act 
brought to the laws concerning New York City was in large part 
destroyed. Why did the charters of 1897 and 1901 fail to correct 
the disintegration? 


The Greater New York Charter Fails to Integrate the Law Anew. 


The failure of the Greater City Charter to centralize the law 
anew was the natural consequence of the circumstances under 
which its authors worked. First, they approached their task in 
the cautious spirit that seems to have infected charter revisers 
from the beginning. Second, unusual difficulties, and additional 
grounds for conservatism, inhered in the task of combining under 
one body of law several municipalities, each with its own cher- 
ished powers and its own obscure legal history. Third, shortage 
of time hurried these cautious men through their complicated 
problem.1 

The circumspection of the Greater New York Commission 
was recalled in remarks of Seth Low,.one of its members, before 
the New York Constitutional Convention of 1915. Alluding to 
the process by which the charter developed, he said: 


“The result is not only that the charter of New York 
is a very bulky document, but it is estimated that approxi- 
mately ten thousand laws affect the administration of the 
City of New York and its powers, surrounding the char- 
ter, so that we are not dealing with a charter that has been 
made out of hand * * * but we are dealing with a charter 
that is the growth of two hundred and fifty years, and I 
venture to think that the gentlemen of this convention will 
feel as I do, that it is a tremendously serious proposition 


The secretary of the Council of the New York City Club remarked 
later: “The enactment of the charter of Greater New York of 1897 is 
a matter of recent history * * *. It is hardly necessary to recall the 
insufficiency of the sum of money provided by the act creating the 
commission; the hurried character of much of the work done, especially 
at the last; the employment of different men to draft different parts of 
the charter, each without knowledge of what the others were doing; and 
the unseemly manner in which the bill was hurried through the legislature, 
despite its many serious and obvious weaknesses,” J. W. Pryor, in 
Rochester Conference for Good City Government, 1906, p. 129. 


16 STATUTORY SOURCES OF NEW YORK 


to suggest that a charter which is a growth like that should 
be torn up by the roots and the city compelled to start 
over again.”! 


Small wonder, then, that the logical opportunity offered at the 
formation of the Greater City was deliberately neglected. 


“Then, if ever, was the time to provide an entirely new 
charter for the City of New York; but that commission, 
like its predecessors, declined to undertake that great re- 
sponsibility. Possibly something of that decision was due 
to pressure of time, but we were restrained, sir, by the 
recognition of the fact that we were dealing with a growth, 
not with a document that was given out of hand by the 
Legislature. To illustrate the significance of the situation, 
let me call the attention of the convention to the fact 
that when the corporation counsel of New York City was 
asked to prepare an amendment to the charter that would 
permit the city to establish a central purchasing bureau, 
it was necessary to provide for the repeal or modification 
of approximately one hundred different laws—approxi- 
mately, if not exactly.’ 


To this historical reason for caution was added the legal 
argument for a detailed charter. The Committee on Draft, in 
their report to the Greater New York Commission on December 
24, 1896, thus envisaged their problem. 


“The established rule of law which prescribes that a 
charter granted to a municipal corporation must be con- 
strued so strictly that nothing may pass by bare inference, 
but every substantial power must be found in the express 
terms of the grant, has added greatly to the labors of your 
Committee. It would have been comparatively easy to 
have drawn a charter in general terms, with concise sec- 
tions, comprehensive in character. This, however, would 
have left to the varying and uncertain rulings of the courts 


connie York Constitutional Convention, 1915, Revised Record, pp. 
*Tbid., p. 1965. 


THE SOURCES IN EVOLUTION 17 


the extent and sufficiency of the powers conferred, and 
would have led to special legislation, when anything new 
or doubtful pertaining to the general grants arose for 
municipal action. To confer upon the Greater New York 
a charter which should render the city self-governing, it 
became, therefore, prudent and necessary to endow it, in 
general and in detail, with every right, power and privilege 
essential to municipal independence, subject to the sover- 
eignty of the State. This method was further enjoined by 
the chief duty devolved upon the Commission, which is to 
effect a consolidation of the various municipalities so that 
there may be no break or jar in the unity and integrity of 
the single corporation, and no lack of power or supremacy 
in its central government.”! 


The result was natural. The charter of 1897 was long and 
detailed. But it did not possess the exhaustiveness that might 
have compensated for its prolixity. It was by no means as in- 
clusive of New York City legislation as was the Consolidation 
Act of 1882, upon which it was largely based? Instead, it fell 
back upon a three-fold expedient. By brief saving clauses,? it 
continued all consistent prior law. Blanket fashion, it repealed 
whatever was inconsistent with itself. By a few broad phrases, 
it gathered up, for possible future use, whatever was compatible 
among the powers and duties of the various local governments 
which Greater New York supplanted.® 


*Report of the Committee on Draft of Charter, to the Greater New 
York Commission, December 24, 1896, the quotation being taken from the 
reprint as given in Birdseye, The Greater New York Charter (1897), 

exit. 

; 7The drafters of the Greater City Charter did not indicate, officially, 
the derivation in the Consolidation Act of each section of the charter. 
That task has since been performed by private commentators; see Ash, 
The Greater New York Charter, annotated (4th ed., 1918), pp. xxxvii-lxv; 
or Birdseye, The Greater New York Charter (1897), pp. xli-xlv. Slightly 
less than one-third of the sections of the Consolidation Act were carried 
into the charter of 1897. Ash, op. cit., in Appendix I, pp. 1243-1315, selects 
and reprints sections of the Consolidation Act deemed to be still in force. 

*L. 1897, ch. 378, sec. 1609. . 

*JId., sec. 1608. 

*Secs. 1, 3, 4, 5, but especially, for the city as a whole, 1615, 1617, and, 
for particular agencies, 41, 1586, 204, 274, 358, 517, 547, 616, 886, 1058, 
1168. For further comment, infra, p. 52-56. 


18 STATUTORY SOURCES OF NEW YORK 
Charter Reviston in 1901 Leaves the Situation Unchanged. 


The Charter Revision Commission of 1900 did not attempt to 
go back of this. Required to report in December of the year of 
its creation, with only $25,000 at its disposal and oppressed by 
haste throughout, it was not disposed to reopen problems of which 
the Greater New York Commission had stopped short and which 
it had glossed over. Indeed, the fruit_of the Charter Revision 
Commission is perhaps more accurately described, in a term often 
applied to it, as “the Amendatory Act of 1901” than as a charter. 
The report of the Commission boasted of no drastic intent: 


“In preparing its recommendations for legislation it 
became necessary for the Commission to determine in the 
first place whether it would undertake the preparation of 
a charter different in form from the existing charter or 
whether it would embody its recommendations in the form 
of amendments to that charter. But the limited amount of 
time at the command of the Commission has rendered it 
impossible to do more than to deal with questions of sub- 
stance; and it has seemed to the Commission that by pre- 
senting its views in the form of amendments to the charter 
as now existing, the legislature and the public generally 
would perceive more clearly what changes are proposed.’”? 


The specific repealers? which were listed at the close of the 
bill were confined to sections in the Greater City Charter. As for 
the rest, the broad saving and repealing clauses of 1897 were re- 
peated almost verbatim.® 


Special Laws Which Have Not Amended the Charter. 


Not only did the revisions of 1897 and 1901 fail to integrate 
all the law relating to New York, City, but the passage of special 


* Report of the Charter Revision Commission to the Governor of the 
State of New York, Dec. 1, 1900, p 
: oe 1901, ch. 466, Section Two, pct to the First Schedule appended 
o the act. 

*Id., sec. 1608 (repealer) ; secs. 1609, 1610 (saving clauses). 


THE SOURCES IN EVOLUTION 19 


acts that did not in terms amend the charter continued unabated. 
Some of these expressly amended those parts of the Consolidation 
Act of 1882 which, although active law, had not been included in 
the Greater City Charter. More, however, related to neither 
charter nor Consolidation Act. The latter situation was natural. 
. The reasons for the passage of special legislation outside the 
charter were essentially those which, as an earlier paragraph has 
indicated, had caused New York City legislation after 1882 to 
scatter beyond the confines of the Consolidation Act. Although, 
as before, many of the unrelated statutes touched matters already 
treated in the body of the Greater City Charter, to which, by 
implication only, they added qualifications or exceptions or even 
outright repeals, the larger number were temporary or were so 
very restricted in application as to seem temporary. Neither 
charter nor Consolidation Act provided convenient handles to 
which to tie them. 

The extent of the disunion in the sources of city government 
thus introduced may be judged from a few figures. The Ivins 
Commission, reporting in 1907, found that 650 special acts had 
been passed since the advent of the Greater City Charter, which 
did not amend it. Six hundred and eighty have been enacted 
since, at the sessions of 1908 to 1921, inclusive? Comparison 
reveals still more clearly the frequency of the practice. Since 
the enactment of the 1901 charter, through the legislative session 
of 1921, 550 formal amendments have been incorporated in it; 
whereas, in the same period, there have been 1,002 special New 
York City acts passed without reference to it. Of the measures 
introduced between 1904 and 1921, inclusive, which have peculi- 
arly involved the Metropolis, 2,545 have proposed to amend the 
charter; 5,220 have not referred to the charter. 


* Report of the Charter Revision Commission of 1907 to the Governor 
BE ae ate of New York, Nov. 30, 1907, in N. Y. Sen. Docs., 1908, vol. 
, p. 10. 

*For the details and sources of this and the following figures, see 
the table in Appendix. Discrepancies are likely between various com- 
putations of the number of special acts which do not amend the charter, 
because an element of judgment is involved in determining whether cer- 
tain acts are to be regarded as special and peculiar to the city in question; 
any total on this point is an approximation only. 


20 STATUTORY SOURCES OF NEW YORK 


Adverse Comment on the Condition of the Statutory Sources of 
the City’s Government. 


Objections have not been lacking. The draft offered by the 
Greater New York Commission was vigorously criticised from 
the standpoint of its underlying form by a special committee of 
the Association of the Bar of New York City. “The proposed 
charter of the Commission,” they reported to the Association on 
March 9, 1897, “is not a charter in any proper sense, and it is 
not a code. It is an imperfect compilation and to some extent a 
condensation of laws affecting the territory of the proposed 
Greater City.” More specifically, they objected to indiscriminate 
reenactment of existing law, and to the blanket elauses which 
continued consistent legislation. They deplored the failure to use 
“the golden opportunity, not likely to be again afforded for a long 
period, to give these great communities an improved, clear, 
simple and harmonious system of local government.”* ‘The re- 
port led to a resolution of the Association of the Bar at its meet- 
ing on March 9: 


“that in the judgment of this association He enact- 
ment of the proposed body of law contained in that char- 
ter would give rise to mischiefs far outweighing any bene- 
fits that may reasonably be expected to flow from it; that 
ample opportunity should be given for thorough: revision, 
simplification, and reduction in the form of the proposed 
charter; and that the true welfare of the communities to 
be affected by the proposed act will be best consulted by 
postponing the period at which consolidation shall take 
effect and by fade reiss the bill for redrafting Bg its 
enactment into law.” 


Much the same criticism was levelled at the Amendatory Act 
of 1901. The New York Chamber of Commerce, in a letter pre- 


* The committee was appointed January 12, 1897, with W. H. Peckham 
as chairman. Its report was printed as a pamphlet, along with the resolu- 
tions on the subject at the meeting of the Association of the Bar of New 
York City of March 9, 1897. 

* On the constructive side, the committee suggested the more extended 
use of the device employed in connection with the building code, in the 
1897 charter. See infra, p. 97 et seq. 


THE SOURCES IN EVOLUTION 21 


_ pared by a special committee and addressed on October 20, 1900, 
to the Charter Revision Commission,! stressed defects of form 
in the proposed charter itself, before turning to the structural 
aspects of city government. They admitted that under the cir- 
cumstances, if the Commission allowed itself to be forced into 
making a report within the time allowed, it could not avoid cut- 
ting the knot by the use of general repealing and saving clauses. 
In this expedient, however, endless perplexities inhered. The 
examination of prior legislation was, the committee recognized, 
a heavy task. “ Lawyers of high standing represent to us that this 
necessary provision involves almost insuperable difficulties and 
that it would require months of investigation to find out what 
is consistent and what is inconsistent.” Better, however, this 
trouble at once than later; the Commission, they recommended, 
should ask for more time and money. 

A decade later these objections to the form of the charter were 
forcefully summed up in a brief? submitted on May 19, 1911, by 
the Committee on Amendment of the Law of the Bar Associa- 
tion, on the occasion of a joint hearing of the legislative commit- 
tees on affairs of cities regarding the proposed “ Gaynor Charter.” 
Although pointed immediately at the mooted draft, destined to 


*This memorial is available as a printed leaflet, entitled, Letter from 
the Chamber of Commerce to the Charter Revision Commission, recom- 
mending Certain Changes in the Charter, October 20, 1900. The sub- 
committee from the Executive Committee of the Chamber, which prepared 
it, consisted of C. S. Smith, J. K. Todd, and G. F. Peabody. 

* This brief, which was submitted without oral argument, was repro- 
duced in the bound typewritten transcript of the stenographic report, 
entitled, Hearings before the Joint Committee on Cities of the Senate and 
Assembly, 1911, vol. 2, pp. 664-82. The brief itself was entitled, “ Memo- 
randum on Senate Bill 1029, Int. No. 907.” Its first and longest section 
is dedicated to the question of charter form; its concluding sections, pp. 
676-82, take up other alleged defects. Perhaps the antipathy which the 
authors of the brief shared with other civic agencies to the auspices and 
the suspected intent of the proposed charter and to certain structural 
changes that it involved strengthened their hands in indicting it on a 
charge of which every revision since 1882 had been guilty. The brief 
did add, however, that “as a rule the proposed law is well and clearly 
expressed, and if it were complete in itself it might well receive our 
commendation in this respect” (p. 675). On July 13, a spokesman of 
the legislative committees on affairs of cities announced that a schedule 
of laws specifically repealed had been introduced in the charter draft in 
accordance with the suggestions of the Bar Association. Brooklyn Daily 
Eagle, July 13, 1911. 


ee STATUTORY SOURCES OF NEW YORI. 


defeat later in 1911, the criticism was equally applicable to the 
existing charter, since no material changes were proposed either 
in the repealing and saving clauses or in the form and content 
generally. The brief summarized the unfortunate short-cuts taken 
by commissions of 1896 and 1900. “The result has never been 
satisfactory. The existing charter is about as far as possible from 
being the instrument which a proper charter should be, and _ is 
exceedingly defective as a law.’”! That the error existed, would 
not excuse, but aggravate, the fault of repeating it in any subse- 
quent revision. 


“Tt is manifest that a law which is merely a new com- 
pilation will only add to the existing confusion of the 
various statutes relating to the municipal government. 
Any new instrument ought to be so carefully prepared 
and be drawn with so much knowledge of the existing law, 
that it will be complete in itself and will not necessitate the 
examination of all prior statutes which are still on the 
statute books unrepealed and which run back to the 
year 1784. The bill in question does not do this. On the 
contrary, it will simply add to the present confusion. It 
has apparently been prepared with the idea of shortening 
the provisions of the present charter and this it does. But 
it does this only by the process of omitting certain provi- 
sions which still remain law, and which are to be found 
only through an examination of the existing charter and - 
other statutes.’”? 


The existing charter, declared the authors of the brief, has 
presented uncertainties enough, and they continued: 


“Such a condition of affairs should not be tolerated. 
The charter of the City of New York should be complete 
in itself. Within this code, any citizen should be able to 
find the provisions and the statutes relating to the munic- 
ipality. He should not be called upon to wade through a 


* Ibid., pp. 675-6. 
*Ibid., pp. 666-7. 


THE SOURCES IN EVOLUTFION 23 


century of previous legislation for the purpose of deter- 
mining what the law on a particular situation is. The 
objection to the present charter, that it consists of layer 
upon layer of legislation, the meaning of which can only 
be definitely determined by a judicial interpretation, will 
be merely emphasized by the adoption of a new charter 
without specifically repealing the provisions. It will be 
but another encrustation, not a codification.’’?! 


A Consolidation of Local Laws Advocated. 


Despite such criticism, the condition of the statutory sources 
of New York City’s government has remained unrectified.? Ex- 
planatory amendments and judicial or administrative rulings have 
gradually cleared up many questions of consistency and incon- 
sistency which were once doubtful. In recent years the special 
acts affecting New York City have been listed and, at last, di- 
gested. A more ambitious scheme for recodification dwindled to 
these partial measures. 

The larger project was advocated by the Citizens’ Union of 
New York in a petition to the legislature in 1910, which said in 
part, “In order to discharge the task properly, all these provi- 
sions of law should be collated, coordinated and simplified so as 
to declare plainly, in one homogeneous statute, the law govern- 
ing the city and all its officers and departments in all their func- 
tions, and in their relations to each other and to the public. 
Necessary changes in the law can then be incorporated in the 


*Tbid., p. 669. 

271It seems to have been the intention of the Commissioners of Statu- 
tory Revision to revise the New York City Consolidation Act; it was 
listed as one of 31 projects in the Report of the Commissioners, etc., 
April 5, 1900, in N. Y. Ass. Docs., 1900, vol. 4, No. 86, pp. 9-10. The idea 
was not carried out, however. Report of the Committee to Report to the 
Legislature concerning the Condition of the Statutes and Laws of this 
State, January 2], 1903, in N. Y.. Ass. Does., -1903, vol. 1, No. 4. , The 
Board of Statutory Consolidation, created by L. 1904, ch. 664, reported in 
1905: “Special private and local statutes have been left for later con- 
Rev ecca Report of the Board, etc., in N. Y. Ass. Docs., 1905, vol. 11, 

O). 55: 


24 STATUTORY SOURCES OF NEW YORK 


charter as an integral part of the whole. The magnitude of the 
task is apparent.’ 

Codification by a small, expert staff, they argued, should pre- 
cede any attempt to alter the substance of the law or the organiza- 
tion of the city government. 

The debacle of the “Gaynor Charter” in 1911, reducing finally 
to futility five years of continuous effort at revision, opened the 
opportunity for a definite step. A committee of the Citizens’ 
Union, perfecting its recommendation in December, prompted the 
introduction at the legislative session of 1912 of a bill? which 
proposed to appropriate $20,000 to the Board of Statutory Con- 
solidation with which to prepare a consolidation of the laws 
relating to territory within the City of New York. Successful in 
the Senate, it reached the order of final passage in the Assembly 
but was suddenly recommitted and lost. Its purpose was par- 
tially rescued by eleventh-hour insertion in the annual supply bill 
of an item that carried $10,000 for the preparation, under the 
direction of the Senate committee on affairs of cities, of “a digest 
of all independent and collateral statutes affecting in any way the 
City of New York, and each of the municipalities comprised 


* Searchlight, December 20, 1913, vol. 3, No. 6, p. 3. In quoting their 
petition of 1910, the editors added: “The confusion of the state of the 
law relating to the city has increased with every year until revision has 
become an absolute necessity. The first step in the work should be the 
consolidation of all the existing laws relating to the City. This is a nec- 
essary preliminary of charter revision.” The same opinion was expressed 
by a lawyer with unusual experience in the framing of legislation: 
“* * * before any thorough revision of our city charter can be 
adopted the great mass of local legislation inside the charter and outside 
the charter relating to the city government must be thoroughly studied 
and consolidated. If this mass of local legislation is not got under control 
it will torment the proponents of any new charter and in all likelihood 
defeat their efforts.’ Thomas I. Parkinson, of the Legislative Drafting 
Bureau of N. Y. C., in Proceedings of the Academy of Political Science, 
April, 1915, vol. V, No. 3, pp. 230-1. 

43) APrOUNos 1226, S é No. 1081, introduced March 14 by Senator ~ 
Wagner, Democratic Leader OR Ve Sen. Jour., 1912, p. 598); passed 
Senate without recorded dissent, March 20 (ibid., p. 753) ; Ass. Ree. No. 
245; reported, amended slightly, and made special order, March 23; (Ass. 
Jour., 1912, p. 1621); recommitted to Committee on Rules by vive voce 
vote, "March 28 (ibid., p. 2035). The Report of the Committee on Legisla- 
tion of the Citizens’ Union for the Session of 1912, p.i5, remarked: “ Some 
who had been engaged in preparing, for large compensation, various politi- 
cal charter revisions, promoted opposition to the bill.” 


iS al 


THE SOURCES IN EVOLUTION 25 


within or consolidated to form said citv, not contained in the 
Greater New York Charter.” 

Fven this restricted provision fell, without explanation, be- 
fore the Governor’s power to veto details in appropriation bills. 
When finally realized in 1914, by an item in the annual supply 
act of that year,1 the plan was similarly curtailed and provided 
for no more than a digest. Subsequent legislation? nearly 
doubled the original allowance but did not broaden the purpose. 


A Digest Compilation Finally Effected. 


The resulting Digest of Special Statutes Relating to the City 
of New York? has performed a task akin to compilation for the 
first? time since 1880. It differs in several respects from the col- 


*L. 1914, ch. 530, under the heading, “ Board of Statutory Consolida- 
tion” (p. 2305): “ For the preparation, under the direction of the Chair- 
men of the Senate and Assembly committees on affairs of cities, of a digest 
of all independent and collateral statutes affecting in any way the city 
of New York and not contained in the Greater New York Charter, S10, 000, 
to be paid upon the certificate of the chairmen of said committees.” 

7L. 1915, ch. 726, under heading, “ Board of Statutory Consolidation ” 
(0.12553), $5,000, for deficiency; L. 1921, ch. 176, Part II of Appropriation 
Act (p. 680-1), $4,231.17, for deficiency; L. 1922, ch. 397 (Supplemental 
Supply Act), at p. 833, $5, 500 (appropriated in the name of the N. Y, C. 
Charter Commission for printing, etc., in connection with “digest of 
oa and collateral statutes ‘affecting in any way the City of New 

or 9 

®° The full title and sub-titles being, Digest of Special Statutes relating 
to The City of New York and each of the Municipalities comprised wurithin 
or consolidated to form said City, and not contained in the .Greater New 
York Charter from February 1, 1778, to January 1, 1921—Together with 
a List of Corporations Incorporated by Special Statutes within the Tern- 
tory now included in the Territory embraced within Greater New York 
(October 1, 1922). Although begun and executed under the auspices indi- 
cated in a preceding note, the final appropriation for printing was authorized 
in connection with the New York City Charter Commission and the digest 
describes itself as having been “edited and printed under the supervision 
of the New York City Charter Commission.” 

*In 1911 (pursuant to L. 1910, ch. 513, and L. 1911, ch. 192) the Board 
of Statutory Consolidation prepared The Statutory Record of Unconsoli- 
dated Laws, being the Special, Private and Local Statutes of the State 
of New York, from February 1, 1778, to January 1, 1912, in two volumes. 
A third volume, Supplement to Statutory Record, etc., issued in 1918 (pur- 
suant to L. 1917, ch. 325, and L. 1918, ch. 424), covered the period 1912-8, 
Not only was it confined to the citation of chapter and abridged titles, 
but the arrangement was starkly chronological. Nowhere does it assem- 


26 STATUTORY SOURCES OF NEW YORK 


lection known as The Special and Local Laws Affecting Public 
Interests in the City of New York in force on January 1, 1880.7 
(1) Whereas the earlier document was in fact a compilation, 
reprinting the full text of the acts themselves, although sometimes 
separating the contents of single measures found to relate to sev- 
eral subjects, the new digest attempts only to set forth in a few 
lines the essential provisions of each statute that it lists. (2) 
Whereas the compilation of 1880 assembled the material under a 
number of broad topics, with secondary attention to the order of 
enactment, the digest is strictly chronological, and involves the 
topical arrangement only in the headings of its detailed indices. 
(3) The digest is broader, however, in that it lists the statutes 
which have been specifically repealed, as well as those which, 
whether obsolete or not, have never been specifically repealed. 
(4) It is broader, furthermore, in that it explores the legislative 
history of the many local governments which have at some time 
operated within the area now covered by Greater New York City. 
The number of communities treated in the section of the digest 
which is given to unrepealed law runs over thirty. “To locate 
the settlements, villages and towns that were consolidated to form 
Greater New York,” say the authors of the digest,? “it was neces- 
sary to consult old maps, charts, gazetteers and histories. If any 
inaccuracies have crept into this volume they may'be attributed to 
this phase of the work.” (5) It is broader, finally, in the sense 


ble citations to all of the statutes which have concerned New York or any 
other municipality, let alone group these under the various aspects of 
city business. Charter amendments, in the formal sense, might be traced 
by examining the lists under each past charter, but the masses of special 
legislation outside the charter could be located only by combing the entire 
contents of the Statutory Record. The task is partly performed in the 
Official Index to the Unconsolidated Laws of the State of New York, 
1778-1919 (published, pursuant to L. 1917, ch. 332, as N. Y. Leg. Doc., 
1920, No. 127). Nearly one hundred pages are given to New York City 
legislation, the classification being by subjects and the arrangement alpha- 
betical. But the document is “an index only of original laws. It is not 
an index of matters added by amendatory acts. The year and chapter of 
an original law having been discovered by means of the Index, its subse- 
quent history must be traced by the Record.” Furthermore, the legislation 
affecting municipalities since merged in the metropolis is indexed under 
many separate headings. Neither the Statutory Record nor the Index 
has furnished a convenient compilation of the statutory sources of the 
City’s government, even in the terms of mere titles and chapter numbers. 
* See supra, p. 8; also infra, p. 38. 
* Digest, etc., pp. ili-iv. 


THE SOURCES IN EVOLUTION 27 


that it lists, under an alphabetical arrangement and with chapter 
citations but without digesting, the corporations which have been 
incorporated by private statutes within the territory now em- 
braced in Greater New York. 

With revision and consolidation the authors of the digest 
could have nothing to do. The terms of the legislative authoriza- 
tion under which they worked restrained them from even con- 
sidering the laws which have comprised the charter in the formal 
sense. They were not asked to resolve the inconsistencies so 
often implicit between laws which do not expressly involve each 
other. One of the most valuable features of the digest is the 
indication, in connection with the acts not specifically repealed, 
of the subsequent measures which have “affected” them; but the 
relationships which are cloaked by the word “affected” and which 
so often turn on a difficult practical judgment are not stated. It 
is only here and there that the digest undertakes to describe as 
temporary and obsolete statutes which have never been expressly 
repealed. Although valuable as it stands and although a neces- 
sary step in any movement for the consolidation and revision of 
the bodies of law affecting New York City, the digest does no 
more than to facilitate access to the scattered statutory sources of 
New York City’s government. 


CHAPTER II. 


THE SOURCES TODAY—SPECIAL CITY LAWS. 


Provisions for Repeal in the Charters of 1897 and 1901—Examples 

of Non-Repeal by Omission—The Present Charter in Relation to 

Laws Prior to 1882—Inconclusiveness of Express Repealers in Con- 

nection with the Consolidation Act—Conflicting Evidences of 

Legislative Intent—Cases that Point to the Survival of Omitted 

Legislation—Cases that Point to the Repeal of Omitted Legis- 

lation—The Doctrines of Codification Consulted—The Legislative 

Heritage of Communities Absorbed in Greater New York—The 

Royal Grants as Continuing Sources of City Government. 

Where, then, is the law of New York City today? 

The question comprises a complex of problems which the 
cautious but hurried and knot-cutting method of charter revision, 
reviewed in the preceding pages, has rolled up around the Con- 
solidation Act of 1882 as an axis. These problems may be divi- 
ded into two groups: (1) the problem of unrepealed legislation ; 
(2) the problem of overlapping special and general legislation, es- 
pecially the General City Law and the General Municipal Law, but 
involving also the systems of state law that govern the adminis- 
tration of justice, civil service, education, utilities, etc. The pres- 
ent chapter, in treating the first of these groups of problems, must 
consider unrepealed legislation applicable to the old City of New 
York, the legislative heritage that came to the Greater City from 
the communities merged in it, and, finally, the ancient royal grants 
as possible sources of city government today. The question of 
unrepealed legislation applicable to New York City naturally 
claims the major share of attention. It resolves itself into two 
phases: (1) the relation of the charters of 1897 and 1901 to prior 
legislation omitted hy them; (2) the relation of the Consolidation 
Act of 1882 to the earlier New York City Jaws omitted by it. 


Provisions for Repeal in the Charters of 1897 and 1901. 


The Greater New York Charter was not intended to exhaust 
the special laws applicable to New York City. The policy that 


SOURCES TODAY—SPECIAL CITY LAWS 29 


characterized both the original charter and the Amendatory Act 
of 1901 in this regard has already been indicated. A recital of 
this exact provision is now in place. Prior legislation, in so far 
as it was inconsistent, was repealed by the sweeping clauses of 
sec. 1608: 

“The act of the legislature of the State of New York, 
passed July first, eighteen hundred and eighty-two, known 
as the New York City Consolidation Act of eighteen hun- 
dred and eighty-two, and acts amendatory thereof, and 
supplemental] thereto, and other acts of the legislature of 
the State of New York now in force relating to or affect- 
ing the local government of the City of New York, as 
heretofore constituted, are hereby repealed so far as any 

- provisions thereof are inconsistent with the provisions of 
this act, or so far as the subject matter thereof is revised 
or included in this act, and no further. So far as the pro- 
visions of this act are the same in terms or in substance 
and effect as the provisions of the said Consolidation Act, 
or of other acts of the legislature now in force relating to 
or affecting the municipal and public corporations, or any 
of them herein united and consolidated, this act is intended 
to be not a new enactment, but a continuation of the said 
Consolidation Act of eighteen hundred and eighty-two, 
and said other acts, and is intended to apply the provisions 
thereof as herein modified to The City of New York as 
herein constituted, and this act shall accordingly be so 
construed and applied.” 


On the other hand, sec. 1609 (making explicit what otherwise 
would have been understood in accordance with the normal rules 
of statutory construction) declared that omission should not be 
construed to mean repeal. It said: 


“ The mere omission from this act of any previous acts 
or of any of the provisions thereof, including said Consoli- 
dation Act of eighteen hundred and eighty-two, relating to 
or affecting the municipal and public corporations or any 
of them which are herein united and consolidated, shall not 
be held to be a repeal thereof.” 


30 STATUTORY SOURCES OF NEW YORK 


Such were the provisions that determined the relation between 
the charter of Greater New York and the masses of prior legis- 
lation. 

What of the relation of the Amendatory Act of 1901 to the 
original Greater New York Charter? The clauses just quoted 
were identical in both documents. The latter enactment, how- 
ever, contained new provisions (Section Two, so-called, the body 
of the revised charter being Section One) that specifically re- 
pealed 156 sections in the charter of 1897. An attached schedule 
designated these by number and by title. This repealer was ac- 
companied by the usual qualification intended to protect actions 
or proceedings already pending under the old law. In addition 
it was expressly stated that in so far as the revised charter re- 
peated the substance of the old, whether found in repealed sec- 
tions or not, it should be construed as a continuation merely and 
not as new legislation. The language of Section Two at this 
point recited: 


“The provisions of this act, so far as they are substan- 
tially the same as those of laws existing on December 
thirty-first, nineteen hundred and one, shall be construed 
as a continuation of said laws, modified or amended ac- 
cording to the language employed in this act, and not as 
new enactments, and shall be applicable to all matters con- 
tained in the several sections of the said chapter three hun- 
dred and seventy-eight of the laws of eighteen hundred 
and ninety-seven which are repealed, modified or amended 
by this act. References in laws not repealed to provisions 
of law incorporated into this act'and repealed shall be con- 
strued as applying to the provisions so incorporated.” 


The Amendatory Act of 1901 was silent regarding the dis- 
position of those parts of the 1897 charter which it did not speci- 
fically repeal and which it omitted altogether ; except in so far as 
the question was covered by sec. 1609,1 adjustments were left to 
implication and to the normal rules of statutory construction. 


*O’Connor v. the City of New York (1906), 51 Misc., 560, aff’d by 
memo. 120 App. Div., 875, involved the question of the repeal by omission 
from the revised charter of sec. 262 of the charter of 1897. In taking 
up the problem, the court alluded at once to sec. 1609. 


ROUGE GLODAY SPECIAL CULVAEA Wise) 41 


These repealing and saving clauses made the legislative intent 
clear, and left only the endless questions of detail that inhere in 
uncovering relevant provisions in earlier law and in determining 
whether such provisions are or are not consistent with the charter 
provisions involved in any contemporary situation. In the latter 
sense, the perplexities have been very real. The difficulty in dis- 


covering the effect of new law upon old law, it must be added, 


was aggravated by clauses of the charter which, at several points, 
injected questions of degree. Does a new provision sufficiently 


-cover the subject-matter of the old to accomplish its supercession 


| 


as matter “revised or included” in the charter? Is a new pro- 
vision, although different in terms, sufficiently near “in substance 
and effect” to the old law to be construed as a continuation of 
it rather than as legislation de novo? To these problems, invited 
by the language of sec. 1608, a third was added by certain phrases 
in sec. 16101 This section was written into the charter as a 
legislative short-cut in the task of combining several municipali- 
ties. It declared that active provisions of law applicable to the 
old City of New York should be extended to the whole of the 
Greater City. Two qualifications were attached; the provisions 
must be of a “general and permanent” character; they must not 
be “in their nature locally inapplicable to other portions of the 
city.” All three questions have been more than a matter of con- 
sistency between the formal terms of new and old laws; they have 


* Sec. 1610 was identical in both L. 1897, ch. 378, and L. 1901, ch. 466. 
Its full text is as follows: “All of the provisions of all acts of the 
legislature of the state of New York, including said consolidation act of 
eighteen hundred and eighty-two, of a general and permanent character, 
relating to the corporation heretofore known as the mayor, aldermen and 
commonalty of the city of New York, in force at the time this act goes 
into effect, which are consistent with this act and its purposes, and which 
are not revised and included in or the subject matter thereof covered by 
this act, are hereby extended to The City of New York as herein con- 
stituted, so far as they are consistent with this act, and are not in their 
nature locally inapplicable to other portions of the city than the corpora- 
tion heretofore known as the mayor, aldermen and commonalty of the 
city of New York. And the provisions of law thus extended to The City 
of New York as herein constituted shall apply to said city throughout its 
whole extent, anything to the contrary notwithstanding contained in the 
charter of any of the municipal or public corporations or laws relating 
thereto, which are by this act united or consolidated with the corporation 
heretofore known as the mayor, aldermen and commonalty of the city of 
New York.” 


$Z STATUTORY SOURCES OF NEW YORK 


involved the measuring of degrees and have required judgments 
regarding the practical effects of legislation. 


Examples of Non-Repeal by Omission. 


In view of the explicit saving clause of sec. 1609, no doubt 
could exist regarding the continuing force of omitted legislation 
where the omission was complete in the sense that the charter 
contained no provisions impinging upon the subject-matter of 
the earlier law. Such situations, however, can arise but seldom. 
The details of the Greater New York charter ramify into so 
many fields and in origin touch so many of the pre-existing stat- 
utes that it would be difficult to find a special New York law 
on a topic wholly irrelevant to material now in the charter. This 
‘view, which may be deduced from the nature of the charter, 
seems to have partial confirmation in the absence of cases in 
point. Where the question of non-repeal by omission has actu- 
ally been raised before the courts, it has been in connection with 
laws that have involved subjects treated in the charter. 

An illustration is afforded in People ex rel. Pumpyansky v. 
Keating,! which may be regarded as the leading case in point. 
The question here was the repeal or non-repeal of a statute of 
18962 that had authorized the municipal assembly to grant per- 
mits for stands beneath the stairs of elevated railroad stations. 
The charter of 1897 omitted this provision from the enumeration 
of the powers of the local legislative body. Yet the charter was 
not wholly silent on the matter at issue. In clauses? taken largely 
from the act of 1896, it empowered the municipal assembly, 
among other things, “to regulate the use of streets * * * and 
to prevent encroachments upon and obstructions to the same 
* * *” and to this grant it attached the following condition: 
“ * * * but they shall have no power to authorize the placing or 
continuing of any encroachment or obstruction upon any street 


* (1901) 168 N. Y., 390, over-ruling 62 App. Div., 348. 

*L. 1896, ch. 718, amending sec. 86, L. 1882, ch. 410, as previously 
amended by L. 1888, ch. 115. 

*L. 1897, ch. 378, sec. 49, subd. 3. 


SOURCES TODAY—SPECIAL CITY LAWS 33 


or sidewalk, except the temporary occupation thereof, during the 
erection or repairing of a building on a lot opposite the same, 
nor shall they permit the erection of booths and stands within 
stoop lines, except for the sale of newspapers, periodicals, fruits 
and soda water, and with the consent in such cases of the owner 
of the premises.” The Appellate Division was impressed by the 
fact that the clauses just cited were “a revision of the matter 
contained in the act of 1896 and a re-enactment of a portion of 
such act, but the Legislature has left out of it that portion of the 
Consolidation Act which related to stands and booths under stair- 
ways of the elevated railroad structures.” On this basis the 
Appellate Division held that the omitted part of the act of 1896 
had been repealed. The Court of Appeals, however, over-ruled 
the contention of the intermediate court and held that the city 
had not lost the power in question. 

Indeed, far from upholding repeal by omission where the sub- 
ject-matter is in any way covered by the terms of the charter, 
the construction adopted by the courts has favored giving effect 
to omitted legislation if it is possible to do so. In Baker v. The 
City of New York,! for example, the point at issue was whether, 
in face of the fact that the charter provided for the appointment 
of stenographers by the coroners and said nothing about compen- 
sation for transcripts, the provisions of prior law regarding fees 
still applied. The Court said: 


“The provision of the charter that the coroners shall 
have stenographers is in no way inconsistent with the pro- 
visions of the Consolidation Act. The charter does not 
as fully describe the duties of such a person as does the 
Consolidation Act, nor does it regulate his salary. It was 
not the purpose, evidently, of the framers of the charter, 
to revise and collate all the provisions which were in 
existence at the time relating to the office and to the powers 
and duties of coroners. The intention was to recognize 
in a general way the existence of such offices, leaving the 
regulation of their powers and duties to be governed by the 
earlier and more ample provisions on that subject in the 
Consolidation Act.” 


1 (1900), 67 N. Y. Supp., 814, 816; 56 App. Div., 350. 


34 STATUTORY: SOURCES OF NEW YORK 


By the same reasoning a provision of the charter stipulating 
that clerks of commissioners in condemnation proceedings should 
be paid out of certain funds was held not to repeal a prior statute 
which required that the clerks be designated by the corporation 
counsel! These examples illustrate the manner in which the 
courts have resolved in favor of prior legislation the doubts that 
must frequently arise in connection with the provision found in 
the general repealing clause of the charter,? which states that 
such legislation is to be regarded as repealed, not only in so far 
as it is inconsistent, but in “so far as the subject matter thereof is 
revised or included in this act.” This interpretation is allied to, 
and sympathetic with, the principle stated in the concluding 
phrases of the repealing clause itself and repeatedly applied,’ 
under which the charter is regarded merely as a continuation of 
the Consolidation Act and other prior legislation wherever, al- 
though differing perhaps in terms,* they are the same “in sub- 
stance and effect.” Therefore even unwritten practices of gov- 
ernment before 1897 may guide the interpretation of the explicit 
terms of the present charter.) 

But of how much practical importance, one may ask, is the 
pre-existing legislation dating back to the Consolidation Act of 
1882 which, omitted from the Greater New York Charter, has 
been carried along by its saving clauses? What would have been 
the practical effect if it had been repealed outright? The adju- 
dicated cases afford at the best a slender basis for a judgment. 


* Matter of Board of Public Improvements (1902), 77 App. Div., 351. 

* Sec. 1608. 

“See, for example: Worthington v. London Guaranty and Assurance 
Company (1900), 164 N. Y., 81, 85, “ The student of the charter is con- 
stantly impressed with the fact that this is not a new enactment, but a 
continuation of the Consolidation Act of 1882 and its amendments as 
modified;” Matter of East 176th St. (1898), 33 App. Div., 365, 53. N. Y. 
Supp., 875, aff’d by memo. 158 N. Y., 668; People ex rel. Bierach v. York, 
et al. (1899), 36 App. Div., 185, 55 N. Y. Supp., 462; in re Opening of 
East 169th St. (1899), 40 App. Div., 452, 58 N. Y. Supp., 100, aff’d by 
memo. 161 N. Y., 622; People wv. Jensen. (1904), 99 App. Div., 355, 90 
N. Y. Supp., 1062, ‘aff'd by memo. 181 N. Y., 571. 

*For an exposition of the rule on this point as it has been developed 
in the New York courts, see, for example, Matter of Estate of Prime 
(1893), 136 N. Y., 347, and cases there differentiated. 

° Ghee v. Northern Union Gas Co. (1899), 158 N. Y., 510, the question 
at issue here being the location of the power to grant franchises for the 
use of the streets for gas-lighting purposes. 


SOURCES TODAY—SPECIAL CITY LAWS 35 


In People ex rel. Pumpyansky v, Keating, which has been shown 
to have involved the continuance of a law empowering the city 
over a particular matter, “it was not contended by either side 
that the city could grant any such right unless by virtue of such 
statute.”1 The effect of a contrary decision would presumably 
have been the enactment, or equally troublesome attempt to enact, 
a charter amendment. Most of the instances which raise the 
question of omitted legislation involve the details of procedure, 
and not powers. Although technical, they are not for this reason 
unimportant. In one of the cases already cited, Matter of Board 
of Public Improvements, to hold (said the Court) that the law 
in question had been repealed by omission from the charter would 
require a procedure in condemnation proceedings “ which would 
increase the cost of these proceedings, now extremely burden- 
some to the city and the property owners.” 


The Present Charter in Relation to Laws Prior to 1882. 


The charters of 1897 and 1901 left unrepealed all prior legis- 
lation (a) which was not “inconsistent” or (b) which was not 
“the same in terms or in substance and effect”? or (c) which was 
merely “ omitted.” Such legislation was obviously to be found in 
the Consolidation Act of 1882, as amended to 1897, and in laws 
enacted between 1882 and 1897 which, although specially appli- 
cable to the City of New York, were not in the form of amend- 
ments to the Consolidation Act. But what of laws that ante- 
dated 1882? This raises the most difficult legal question that is 
presented in the whole subject of repeal. For whatever laws were 
left unrepealed by the Consolidation Act and are not inconsistent 
or identical in terms or in substance and effect with the provisions 
of the present charter are still in force. 


* People ex rel. Hofeller v. Buck (1920), 193 App. Div., 262, 266. It 
may be noted that when the Pumpyansky case was before the Appellate 
Division, the two judges who dissented from the opinion that the statute 
of 1896. had been repealed were inclined to rest their dissent upon the 
saving clause (sec. 41) of the charter which continued the pre-existing 
ordinances ard upon the argument that the city still retained a general 
power over streets. 


36 STATUTORY SOURCE S*OR NE Wan 


The problem that lies back of 1882 is not merely one of the 
application of a legislative intent; it concerns the intent itself. 
Did the omission of prior matter from the Consolidation Act 
accomplish its repeal by implication? 

The question involves contingencies that are normally dor- 
mant and can at the worst be infrequent. Charter revision must, 
however, take account of potentialities. Old law has a way of 
bobbing up unexpectedly long after the event, and this is the 
more likely in those large fields in which the law of the city 
touches private property and, in connection with such matters as 
street improvements, assessments, taxation and the rest, not only 
creates relations between municipality and individuals but also 
leaves these to multiply in rights and obligations between private 
persons as transfers of real estate go on through the years. A 
single random illustration will suffice. In 1903 a case was decided 
that involved an action for ejectment on a tax sale for taxes of 
1877-9, advertised and held in May, 1883, under a law of 1871 
which governed such proceedings.1. Any uncertainty in the in- 
tent of the Consolidation Act of 1882 to repeal or to continue 
prior law not only affects legislation from the beginning but also 
is carried into the present situation. 


Inconclusiveness of Express Repealers in Connection with the 
Consolidation Act. 


The first phase of the question is one of fact. What, exactly, 
did the Consolidation Act of 1882 and the legislation that led im- 
mediately to it say of repeal? The Consolidation Act itself con- 
tained neither specific nor general repealers nor, as far as New 
York City was concerned, did it contain any general saving 
clause. Section 2143, which dealt with the effect of the act, had 
to do primarily with the relation of the Consolidation Act to the 
Codes of Civil Procedure and of Criminal Procedure and the 
Penal Code. Its only phrases of general application provided: 


*Ely uv. Azoy (1903) 39 Misc. 669. 


SOURCES TODAY—SPECIAL CITY LAWS oy 


(1) that the passage of the Consolidation Act should not affect 
penalties, forfeitures, rights of removal, etc., in actions already 
commenced, although under laws superseded or repealed by it; 
(2) that nothing in the act should “ be construed as affecting any 
existing provision of law so far as such provision applies to any 
portion of the State other than the City of New York.’ Other- 
wise, the Consolidation Act was silent regarding its effect on prior 
legislation. 

The Consolidation Act must be considered, however, in con- 
nection with an earlier and separate enactment. On June 16, 
1881,? at the instance of the commissioners who had already pre- 
pared the compilation of local laws and were then at work on 
the draft of the Consolidation Act, the legislature repealed by 
specific reference a considerable number of statutes which dated 
back to 1784 and which were deemed by the commissioners to be 
obsolete or otherwise inapplicable. But this, too, left the question 
of prior legislation open. In view of its express closing statement 
that the repeal of legislation by it should not be construed “as 
implying that any portion -not herein mentioned remains in force,” 
it could scarcely be argued—a doubtful contention at best—that 
the specific enumeration in this repealing act should be con- 
sidered exhaustive. 


* This second provision was added by L. 1883, ch. 276, passed April 21, 
which altered 34 sections in the original Consolidation Act. The only other 
change made in sec, 2143, however, set forward the date when the Con- 
solidation Act should be considered to be generally in effect from March 
1 to April 1, 1883. 

7L. 1881, ch. 537, “An Act to repeal certain acts and parts of acts 
therein named, so far as the same relate to or apply to or within the 
city of New York,” effective July 1, 1882. Sec. 1 stated simply, “ The 
following acts and parts of acts are hereby repealed, so far as the same 
relate to or in any manner apply to or within the city of New York 
* * *” Sec. 2, which followed the enumeration, read, “The repeal 
of any of the said laws shall not revive any provision of law repealed 
or superseded by any such law or portion thereof. The repeal by this 
act of the said acts or portions shall not be construed as implying that 
the same or any portion thereof has remained in force down to the passage 
of this act, or as implying that any portion not herein mentioned remains in 
force.” Nothing more was said. This act was amended with reference to 
a slight error in a particular act which it had repealed, by L..1882, ch. 301. 
It may be added that L. 1880, ch. 245, had repealed a number of acts by 
specific reference, in order to clear debris away from the Code of Civil 
Procedure; some of these naturally related to New York City. 


38 STATUTORY SOURCES OF NEW YORK 
Conflicting Evidences of Legislative Intent. 


But, although silent in regard to its repealing effect, was there 
anything in the Consolidation Act or in the legislation leading te it 
which might be taken as an indication of the legislative intention 
concerning omitted legislation? The evidence is conflicting. (1) 
On the one hand there were indications of the purpose to make 
the Consolidation Act inclusive of all New York City law. The 
compilation of 1880, although legally quite separate from the 
Consolidation Act, served in fact and by common knowledge and 
with undoubted legislative intent as its basis. Of this compilation 
the legislature had declared that it was to be “ considered as con- 
taining presumptively all special or local laws affecting the public 
interests in force in the City of New York, on the first day of 
January, 1880.’ More directly in point was the language of the 
act of 1880? which directed the preparation of a consolidation: 
“In making such revision the said commissioners shall not make 
any change in the meaning of existing laws, but shall seek to 
simplify and to mold into consistent acts al/> existing statutes 
upon matters embraced in such special and local laws.” The 
term “all” was not found in the title of the Consolidation Act#* 
but was employed at one point in the act itself; section 2143, in 
explaining why certain foregoing sections had been taken in sub- 
stance from the Codes of Civil Procedure and of Criminal Pro- 
cedure, although they were to have no effect upon the latter, 
stated that the designated sections were to “be treated and con- 
sidered as embraced in this act solely in order that it may contain 
ail® provisions of existing laws which are of special application 
in the City of New York.” The possible implications of this 
wording are obviously lessened by its association, as an incidental 
explanation, with directions for the interpretation of a particular 
class of provisions in the Consolidation Act. 


*L. 1880, ch. 595, passed on the same day as the statute directing the 
commissioners to proceed with the task of actual revision. 

*'L. 1880, ch, 594. 

*Ttalics are the author’s. 

*“ An Act to consolidate into one act and to declare the special and 


local laws affecting public interests in the city of New York.” 
* Italics are the author’s. 


SOURCES TODAY—SPECIAL CITY LAWS 39 


(2) On the other hand, the report of the commissioners who 
drafted the Consolidation Act expressly stated that they had 
omitted not only “laws which were temporary in their purpose ” 
but also “laws which, though the basis of the existing order of 
things—the foundation of existing rights—seem not properly the 
subject for revision, as nothing affirmative remains to be done 
under them.”! Yet such acts could not be considered obsolete. 
In the words of the report, “ They, like many general laws of the 
State, are necessary to be referred to from time to time * * *,” 
This important qualification is indeed recalled in the later lang- 
uage of the report: ‘ It will certainly be no small gain if we can 
succeed in bringing into five hundred pages all the active, ef- 
fective” laws specially applicable in the City of New York.” 


Cases Which Point to the Survival of Omitted Legislation. 


Such being the facts, the second phase of the question is one 
of interpretation. Have judicial decisions since clarified the prob- 
lem of legislative intent in the omission of prior matter from the 
Consolidation Act? 

An early decision by an intermediate court at once presents 
itself in support of the position that acts of more than temporary 
nature were continued in force despite omission from the Consol- 
idation Act. Mayor, etc., of the City of New York v. Buel? 
arose in the attempt of an employment agency to oppose the 
imposition of a penalty for failure to pay the license fee which a 
city ordinance prescribed. The basis of the ordinance was an 
act of 18224 that gave the common council “full power and auth- 
ority to make and pass such by-laws and ordinances as they shall, 


*Report of the Commissioners appointed under Chapter 594 of the 
Laws of 1880, with a Draft, etc, May 23, 1881, p. iv. This passage in 
the report has already been quoted from, and the policy discussed, supra, 
Orit. 

? Italics are the author’s. 

° (1884) 12 Daly 494, in the Court of Common Pleas on appeal from 
judgment in the District Court of the 3d district. 

*L. 1822, ch. 15. The ordinance in question dated to Apr. 30, 1827. 
It has been carried unchanged through the several revisions of the ordi- 
nances; it appeared, it may be added, in an edition of ordinances issued 
in 1894 (art. 20 of ch. VIII). This ordinance fixed the fee at $25 and 
$12 annually for renewal, with a penalty of $50 for each offense. 


40 STATUTORY SOURCES OF NEW YORK 


from time to time, deem necessary and proper for the regulation 
of intelligence offices,” including, specifically, a charge for licenses 
at “such sum of money as the said common council may require.” 
The Consolidation Act omitted this. In enumerating subjects in 
the jurisdiction of the common council, however, it conferred 
power to make ordinances “in relation to the licensing and busi- 
ness of * * * keepers of intelligence offices,’ among certain 
other designated trades! 

Had the omission of the act of 1822 repealed it and with it 
the ordinance, as the appellants contended? Conceivably, the 
court might have shifted the controversy from the line drawn by 
counsel and have held that the brief, vague, but broad mention of 
intelligence offices in the Consolidation Act covered, the substance 
of the act of 1822 and was to be regarded as a mere continuation 
of it on this matter, thus saving the ordinance, despite repeal of 
the act of 1822. Instead, Justice Daly, with the concurrence of 
his colleague, held squarely that the early act remained in force. 
The short opinion will bear quotation almost in its entirety. 


“Tt does not follow, becatse, by the act of 1882, the 
local laws of the City of New York have been consolidated 
into one act, that a prior local law has been repealed. It 
must be repealed expressly, or by necessary implication. 

Indeed, it has been said by Dwarris that the leaning of 
the court is so strongly against repealing the positive pro- 
vision of a former statute by construction as almost to 
establish the rule of no repeal by implication (Dwarris on 
Statutes, 673, 674); and it is only where the provisions 
of the subsequent act are so contrary to or incompatible 
with the former that it will amount to a repeal of it; or 
where the whole construction of the subsequent act shows 
that it is intended to supersede it (Norris v. Crocker, 13 
How. (U.'S.) 429; Potter on Statutes, 155, 161, and cases 
there collected) ; which is not the case here. 


*L. 1882, ch. 410, sec. 86, subd. 20. Ordinances under this section 
were subject to a provision in sec. 85, which permitted “ penalties for each 
and every violation thereof, in such sums as it may deem expedient, not 
exceeding one hundred dollars * * *.’ Sec. 283, empowering police 
officers to trace missing articles, also mentioned intelligence offices, but in 
another connection entirely. 


SOURCES TODAY—SPECIAL CITY LAWS 41 


I do not find in the language quoted from the report of 
the commissioners who framed the Consolidation Act any- 
thing to warrant the assumption of the appellant that the 
commissioners intended to repeal the act of 1822. But 
even if they had expressed that such was their intention, 
it would not be enough; the repeal must be in the subse- 
quent statute itself, either expressly or by necessary im- 
plication. 

All that has been done in the Consolidation Act in 
respect to the keepers of intelligence offices is that they 
are classified amongst those in relation to whom ordinances 
requiring them to be licensed may be passed by the Com- 
mon Council; and in this respect the Consolidation Act 
is merely cumulative of the pre-existing law in 1822, and 
does not in any way repeal the provision in the act of 1822 
that the persons obtaining the license should pay therefor 
such sum of money as the Common Council may require. 
The Common Council therefore had authority to enact the 
ordinance that keepers of intelligence offices should pay for 
licenses the sums before named, and that if any one kept 
an intelligence office without having procured a license, he 
should be subject to a penalty of $50 for each offense.” 


The situation, clearly, was not the extreme one where the 
revision not only omits the earlier act but does not even mention 
its subject matter; such a case (as later paragraphs will show) 
would probably present less, rather than greater, difficulty in 
holding the prior legislation to be in force. Even in its field, 
Mayor, etc., of the City of New York v. Buel was inconclusive. 
It was never passed upon by a higher court; apparently! it has 
never even been cited in New York courts; no further decisions 
on the same point are found. 

Other cases which have pointed in the same direction have 
given merely incidental or indirect indications. Thus the ques- 
tion in McKenna v. Edmundstone? was whether provisions of 


1 Shepard’s, N. Y. Misc. Cits.; Silvernail’s, N. Y. Cits., 1794-1898. 

7 (1883) 91 N. Y., 231, aff’g. 10 Daly 410. See also Matter of Petition 
of Knaust (1886), 101 N. Y., 188, in which the court did not even mention 
the Consolidation Act in deciding that L. 1867, ch. 697, amended by L. 
1868, ch. 288, did not repeal, by implication, L. 1866, ch. 367, regarding 
certain powers of commissioners of Central Park. 


42 STATUTORY SOURCES OF NEW: YORE 


18751 which related specially to mechanics’ liens in New York City 
had been repealed by the enactment, in 1880, of a statute? cover- 
ing mechanics’ liens in the cities of the State generally. The 
problem primarily concerned the effect of general on prior special 
legislation. In holding that the act of 1875 had not been repealed, 
the Court remarked incidentally, “ The New York Consolidation 
Act incorporates (sec. 1807 & ff.) provisions found in both the 
act of 1875 and that of 1880, but we do not perceive that it af- 
fords any light upon the point here considered.” This failure 
of the highest tribunal, at a time when the passage of the Con- 
solidation Act of 1882 was freshly in mind, even to think of it as 
exhaustive of special New York City legislation was, at the least, 
significant. 


Cases Which Point to the Repeal of Omstted Legislation. 


Against these straws in the wind were certain cases which 
pointed to the opposite conclusion. Matter of N. Y. Institution 
for Deaf and Dumb? may be regarded as leading, not only in 
point of time* and the frequency of later citation, but also in 
the breadth of its dictum on the nature of the Consolidation Act. 
The litigation sprang from the fruitful field of street opening 
procedure. Had an act of 18655 providing for the opening of 


Sl S/ ens, ore: 

*L. 1880, ch. 486. 

* (1890) 121 N. Y., 234; 25 Abb. N. C., 31 Cwith note). In the Matter 
of Wheelock (1890) 121 N. Y., 664, was affirmed on the basis of this 
opinion. The lower court had already decided (1889), 21 N. Y. S. Rep., 
369, that even if L. 1865, ch. 381, had conferred power over sewers on 
the commissioners of Central Park (which the court denied) the provision 
would be considered repealed by the vesting of jurisdiction over sewers 
in the commissioner of public works. 

*Of the 7 cases adduced by counsel in Matter of N. Y. Institution 
for Deaf and Dumb in favor of the proposition that the Consolidation Act 
repealed the statute of 1865, only one, People wv. Jaehne (1886), 103 N. Y., 
195, dealt with the Consolidation Act, and that concerned the peculiar 
relation created by its sec. 2143 as regards the Codes of Civ. Pro. and 
Crim. Pro. Of 8 cases cited by opposing counsel in favor of the con- 
tinuing force of ay act of 1865, only one, McKenna v. Edmundstone 
(1883), 91 N. Y., 231, touched the Consolidation Act, and that, as has been 
pointed out, supra, p. 41, was significant because it at once ‘dismissed rie 

*L. 1865, ch. 565, sec. &. Intervening legislation was also involved, but 
holding that L. 1874, ch. 604, had revived the provisions of 1865 after 
their partial eclipse under statutes of 1872 and 1873, the court set the 
question of consistency directly between the act of 1865 and the Consolida- 
tion Act of 1882, 


SOURCES TODAY—SPECIAL CITY LAWS 43 


certain streets been superseded by sections in the Consolidation 
Act which regulated such procedure generally? In answering 
this question, the Court said more than was required and more 
than, in strictness, it decided, since it was really an instance not 
of omission but of substitution. The fact that the Consolidation 
Act not only covered the subject matter of the act of 1865 but 
even embodied some of its provisions became a central point in 
the decision. The Court recognized this: 


“We have not, therefore, a case where some prior 
statute has been wholly omitted and no provision of any 
kind substituted in its place. But this is a case where the 
prior provision of law has been entirely dropped, and pro- 
visions under the same subject are found in the new act. 
Under such circumstances, how is the Consolidation Act 
to be construed? It was the manifest intention of the 
Legislature that it should take the place of the numerous 
special and local acts applicable to the City of New York, 
which had been enacted for more than a century, and to 
rescue them from the obscurity, uncertainty and difficulty 
caused by their scattered condition; and that intention 
should have effect” (p. 239). 


The Court might have avoided altogether the question of the 
inclusiveness of the Consolidation Act, considered in its entirety, 
and have rested the decision upon the relation of the act of 1865 
to the revised provisions on street opening procedure. This posi- 
tive basis of decision was indeed suggested in the opinion al- 
though as a secondary consideration: 


“Against the construction-contended for by the peti- 
tioner, the general rule may also be invoked, that where 
two statutes relate to the same subject-matter, although not 
in terms repugnant and inconsistent, if the latter one is 
plainly intended to prescribe the only rule that shall gov- 
ern, it will repeal the earlier one.”! (p. 240). 


* Citing on this point, inter alia, Heckmann v. Pinkney (1880), 31 N. Y., 
211; People vw. Gold and Stock Tel. Co. (1885), 98 N. Y., 79; People v, 
Jaehne (1886), 103 N. Y., 182, 193. 


44 STATUTORY SOURCES OF NEW YORK 


Actually, the decision went very little further, as its concluding 
passages will show: 


“ Some of the authorities go so far as to hold that where 
prior statutes are revised or consolidated into one act, any 
part of the prior statute omitted must be deemed to have 
been repealed, although the matter omitted is in no way 
provided for in the new law. But we need not go so far 
in this case. Here sec. 8 of the act of 1865, contained pro- 
visions for the assessment and payment of the expenses 
of improving streets, and complete provisions upon the 
same subject, somewhat dissimilar, however, are con- 
tained in the Consolidation Act, and hence they must be 
deemed, under all the decisions, to take the place of the 
prior provisions, and to furnish the only rule upon the 
subject. . 

We have, therefore, reached the conclusion that sec. 8 
of the act of 1865, although not specially repealed, was 
superseded by the Consolidation Act * * *.” (p. 241). 


The relatively limited scope of the decision must guide the 
reading of its broad statements regarding the inclusiveness of 
the Consolidation Act. The Court considered the title of the 
act; particularly it marked the language of section 2143 which 
explained the reasons for including material from the, Codes of 
Civil Procedure and Criminal Procedure! “It is thus plain,” 
the opinion said, “that it was the legislative intention that the 
Consolidation Act, made up of many acts taken from many 
books, should contain all the special and local acts applicable to - 
the city of New York,” and in a later paragraph, after exam- 
ining certain cases? in other jurisdictions, it said, “ These views 


* Supra, p. 38. 

* Only one of these, however, involved the question of the exhaustive- 
ness of a codification of the whole body of statute law within one jurisdic- 
tion, as distinguished from the revision by a particular act of a prior 
act or acts on the same subject. Bowen v. U. S., 14 U. S. Ct. of Claims, 
162, involved the intent of the Revised Statutes of the U. S. “ The 
object was to relieve one from the necessity of having recourse to the 
earlier statutes, except in cases of grave doubt, or of absolute conflict 
between different sections of the revision.” The other cases cited, Ellis 
v. Paige (1822), 1 Pick., 43, and Bartlett v. King (1815), 12 Mass., 537, 
involved only effects in the revision of one act by another. 


SOURCES TODAY—SPECIAL CITY LAWS 45 


are quite applicable to the Consolidation Act, which was in- 
tended to revise and consolidate the whole statute law relating 
to the city of New York.” 

Subsequent cases have not removed the uncertainty from 
this dictum. Of the opinions which have since ‘cited Matter of 
New York Institution for Deaf and Dumb in some connection 
or another,! five only have dealt directly with the Consolidation 
Act. They, too, have always involved the substitution of 
material in the Consolidation Act, not its outright omission. 

Matter of Board of Street Opening? stressed the broad 
intention back of the Consolidation Act, as evidenced in its 
history, to make it comprehensive of New York City law. The 
point immediately at issue concerned a peculiar saving clause 
attached to that part of the Consolidation Act which regulated 
the opening of streets, etc.: “ Nothing contained in this title 
shall be construed as affecting any provision of special acts 
relating to particular districts or portions of the city, so far 
as such provisions are inconsistent with the provisions of this 
title.” A statute of 18654 had provided that in the area north of 
155th Street property owners should not be assessed for more 
than half of the construction cost of any street over a mile long. 
Later legislation, in 1874,5 had restated this limitation as 
applicable in the 23d and 24th wards. Did the saving clause 
just quoted operate to continue the provision in the scope given 
to it in 1865? The decision turned upon the determination that 
it had already been repealed, since the commissioners who 
drafted the Consolidation Act indicated in the notes to their 


*Shepard’s N. Y. Ct. of App. Cits., and the author’s observations, 
locate 27 such cases (not including Matter of Wheelock), of which 5 dealt 
with the effect of the Consolidation Act of 1882; 12 with the effect of 
codification of some kind, although none with the codification of the body 
of law relating to a city; 2 with the bearing of the Rochester charter on 
prior legislation; 8 with the effect of omission in a case of revision of 
one act by another, of which 3 cited Matter of N. Y. Inst. for D. and D. 
only to distinguish it. 

* (1895) 86. Hun:, 267. 

* Sec. 1008, applying to Title 5, “ O'tpening Streets, Avenues, and Public 
Places,” found in Ch. XVI, “Taxes and Assessments,” L. 1882, ch. 410. 

Be i sooe cheb, sec, 4, 

°L. 1874, ch. 604. 


46 STATUTORY SOURCES GRONEW YORK 


final report that the law of 1865 was to be regarded as super- 
seded by acts of 1871 and 1874.1 

Poth v. Mayor, etc., of N. Y.? assumed without argument 
that two special acts had been “repealed or superseded by the 
Consolidation Act, which provided for all cases of assessments.” 
Mercantile National Bank v. Mayor, etc., of N. Y.,2 held that 
the Consolidation Act stated all the conditions under which 
assessments could be reviewed by certiorari and that resort could 
not be made to the more generous terms which had been stated 
in an‘act on the subject in 1880. 

Ely v. Azoy* turned upon the question whether, where the 
Consolidation Act embodied the substance of previous law in 
practically identical language, it should be regarded merely as a 
continuation of the earlier provisions, thus saving from disturb- 
ance actions and other proceedings in progress at the time of its 
enactment. In holding that it should be so regarded, the Court 
mingled with its decision dictum on the broader problem of 
repeal: 

“The Consolidation Act, however, although a new act, 
was intended to be a compilation and codification of a 
great number of acts relating to the City of New York, 
and undoubtedly operated to repeal absolutely all incon- 
sistent provisions of the former laws, and all provisions 
of former laws omitted in the consolidated statute. But 
as to provisions re-enacted in the Consolidation Act in the 


The note read: “1865, ch. 565, Comp. 998, superseded by 1871, ch. 534, 
and 1874, ch. 604.” Report of the Commissioners appointed, etc., with a 
Draft, etc. (1881), p. 403. But reference to this made it necessary to 
distinguish Matter of N. Y. Institution for the Deaf and Dumb, which had 
held that sec. 8 of L. 1865, ch. 565, was still in force when the Consolida- 
tion Act was adopted. The ground of distinction was that the particular 
subject-matter of sec. 8, unlike that of sec. 4, was not covered in L. 1871, 
ch. 534, nor L. 1874, ch. 604. It can be seen how flexible was the guide 
thus made of the annotations of the commissioners. 

7 (1896) 151 N. Y., 16, 20. The special acts were L. 1880, ch. 537, and 
L. 1881, ch. 648, amending L. 1871, ch. 598. The annotations in the report 
of the commissioners, in 1881, do not extend later than the session of 1879. 

* (1902) 172 N. Y., 35, 44. The earlier statute involved was L. 1880, 
ch. 269. The decision was rendered easier because sec. 821 of the Con- 
solidation Act, as amended by L. 1885, ch. 311, contained the words, “ but 
only on the grounds * * *.” The court did not have to say how it 
would have construed the original wording of the section. 

* (1903) 80 N. Y. Supp., 620, 39 Misc., 669. 


SOURCES TODAY—SPECIAL CITY LAWS 47 


same words which were used in the former act, or in dif- 
ferent but equivalent words, the law must be regarded as 
continuous, and the new act as to such parts will not 
operate as a repeal of the former acts so as to defeat a 
public remedy or to put an end to proceedings properly 
begun.” 


Danielsen v. Sigsbee, Humphrey & Co., e¢ al.,! very recently, 
faced the question of the effectiveness today of an early statute 
that defined the jurisdiction of a local court over seamen. “ At this 
point,” said the opinion, “it is essential to ascertain the effect 
of the Consolidation Act of 1882, ch. 410 In view of the title of 
the act, was there a repeal by implication of ch. 71 of the Laws 
of 1819? Do the provisions of sec. 2143 change the ordinary 
rule in reference to repeal by implication?” The Court, noting 
that the same question had been raised in Matter of N. Y. Insti- 
tution for the Deaf and Dumb, pointed out regarding that case: 


“the provisions of the omitted section were covered by 
other legislation in the new enactment, which did not fol- 
low the omitted provisions. * * * In the case at bar, 
the provisions of the old act (ch. 71 of the L. of 1819) 
were incorporated in the new act in almost the identical 
language, and, in addition, the effect of such provisions 
was extended, so as to cover, not only actions for seamen’s 
wages, but also any action for services brought against an 
owner or master of a vessel, providing such services were 
rendered during any voyage of such vessel. Thus the 
new act is somewhat broader than the old.” 


As for sec. 2143, the very fact that the particular subdivision 
of the Consolidation Act was specifically excepted in the enumer- 
ation of certain parts which were not to effect the Codes of Civil 
Procedure and of Criminal Procedure, created the implication that 
a repeal was to take place. “It is a fair inference that they 
thus intended that the old act should be superseded, and that 
they contemplated that the consolidation should repeal or super- 


* (1921) 187 N. Y. Supp., 700, 702. Although not in point here, it may be 
added that sec. 1286, held herein to repeal L. 1819, ch. 71, was itself 
repealed by the Municipal Court Act, L. 1902, ch. 580. 


48 STATUTORY SOURCES OF NEW YORK 


sede some prior enactments is obvious from the language used 
in sec. 2143.” 

Judicial interpretation in the cases which have directly in- 
volved this phase of the Consolidation Act, then, has not settled 
the doubts regarding its effect in repealing by omission. On the 
one hand, pointing against repeal, stands a single case, never car- 
ried to the highest court and apparently never cited favorably 
or unfavorably, which denied the exhaustiveness of the Consol- 
idation Act even in the grant of power to city authorities on gen- 
eral matters. Partly supporting it, stand several] others which, 
in their failure to consider the Consolidation Act as a factor in 
deciding the continuing force of pieces of legislation prior to 
1882, may be construed to have held by implication that the Con- 
solidation Act was not exhaustive. On the other hand, pointing 
toward repeal, a half-dozen cases have refused to give effect to 
prior legislation that, although neither expressly repealed nor 
positively repugnant, was omitted from the Consolidation Act. 
Several of these spoke broadly of a legislative intention to make 
the revision of 1882 a complete declaration of New York City 
law; actually, they decided no more than that, at the points where 
the Consolidation Act touched the subject matter of prior legisla- 
tion, selected from it, and provided a reasonably complete scheme, 
the Consolidation Act repealed what it omitted. 


The Doctrine of Codification Consulted. 


Such being the facts and the interpretations immediately in 
point, can light upon the repealing effect of the Consolidation Act 
be had from the theory of codification generally ? 

There is substantial agreement that, if an intent to codify is 
apparent and if the revision covers the subject-matter of an omit- 
ted piece of legislation, the omission repeals it by implication, even 
though the express terms of old and new law are consistent.! 


*For example: Sutherland, Statutes and Statutory Construction (2d 
ed., by J. Lewis, 1904), Vol. I, p. 520, says, “A revising statute embracing 
antecedent general laws on various subjects and reducing them to one 
system and one text repeals all prior statutes upon the same subjects 
not included in the body of the revision and not exempted by an express 


BUR Glos PODAY=-SPECIAL CEY LAWS 49 


Although the more incisive decisions in point seem to have 
arisen in other jurisdictions, numerous New York cases! have 
applied this doctrine to the revision of laws in particular broad 
fields, as civil procedure, liquor, banking and the like, even to 
the point of counteracting the usual rule that general legislation 
does not repeal prior special acts.2 The obverse of the doctrine 


clause. Where one act is formed from another, some parts taken and 
others omitted; or where there are two acts on the same subject, and a 
later embraces all the provisions of the first and also new provisions, the 
later act operates, without any repealing clause, as a repeal of the first. 
But the object of the old and the new acts must be the same. The fact 
of revision raises a presumption of a complete code, or a complete treat- 
ment of the subjects embraced in it.’ The anonymous commentator in 
25 R. C. L., 924-5 remarks, ‘As a general rule, the enactment of revisions, 
codes and compilations, and of statutes manifestly designed to embrace 
an entire subject of legislation, operates to repeal former acts dealing with 
the same subject, although there is no repealing clause to that effect. The 
application of the rule is not dependent upon the inconsistency or repugnancy 
of the new legislation and the old; for the old legislation will be impliedly 
repealed by the new even though there is no repugnancy between them 
* * *” Endlich, A Commentary on the Interpretation of Statutes 
(1888), p. 272, does not so rigorously qualify his generalization, “ But the 
general rule seems to be that statutes and parts of statutes omitted from 
a revision are to be considered as annulled, and are not to be revived by 
construction,” citing in this connection, however, cases which in most 
instances do not involve revision in the broader sense of the term codifica- 
tion. 


*Tilustrations are: (1) mechanics liens in N. Y. C., Heckmann v. Pink- 
ney (1880), 81 N. Y., 211 (L. 1875, ch. 379, held to repeal L. 1863, ch. 
500); (2) horse- -racing, People wv. Cleary (1895), 13. Misc., 546; (3) Code 
of Civil Procedure, People v. Levy (1896), 16 Misc., 615; Brigham Uv. 
Ney 1919 ye 155) App. Dive (917, aft’d 227 N. ive 575; (4) tax law, 
People ex rel. Newburg Sav. Bank v. Peck (1898), 157 N. Y., 51; Matter 
of Huntington (1901), 168 N. Y., 399; Pratt Institute v. City of New York 
(1905), 183 N. Y,, 151; Peterson v. Martino (1914), 210 N. Y. 412; (5) 
Code of Criminal Procedure, People ex rel. Sloane v. Fallon (1899), 27 
Misc., 16; (6) Statutory Construction Law, Ryer zw. Prudential Ins. Co. 
of America (1905), 95 N. Y. Supp., 1158; (7) Municipal Court Code, Kral 
v. Lovitz (1916), 161 N. Y. Supp., 127. In the field of more general 
codification, an early case, Harrington v. Trustees of Rochester (1833), 
10 Wend., 547, 551, held that the Revised Statutes of 1830 repealed a prior 
repugnant act despite the presence of a specific repealer in which this act 
was not mentioned; the court argued that implication alone was enough to 
accomplish repeal in connection with consolidations. No New York case 
seems to have held, however, that the omission of an act which was neither 
repugnant to nor on a subject covered in a codification automatically 
repealed such act. 


_*Infra., p. 60, for comment on this problem in regard to New York 


City. 


50 STATUTORY SOURGES OFRINEW MORI 


is that omission does not repeal if the subject-matter of the 
earlier act is not covered.! 

The difficulty in applying this. doctrine to such a revision 
as the Consolidation Act of 1882, however, is already ap- 
parent; it would remain even if more numerous and more 
emphatic precedents existed in New York for the principles 
just stated. There is an important practical difference between 
a statute that gathers together and reduces to one text the 
previous enactments on such a subject as “corporations” or 
“banking” and, on the other hand, the consolidation of all 
kinds of laws affecting a particular locality. It has been shown 
that the crucial factor in determining whether prior legislation 
is repealed by omission is the relation of the subject-matter of 
the prior act and of the code.2 But what shall we regard as 


* Sutherland, op. cit., at p. 523: “An act to revise and consolidate the 
various acts on a general subject will not repeal a particular act relating 
to some branch of that subject which is omitted from the revision and 
whose subject-matter is not covered by it. Thus, an act to revise the 
criminal law and containing no provisions on the subject of pools, trusts, 
and conspiracies in restraint of trade was held not to repeal a particular 
act on that subject. (Commonwealth v. Grinstead, 108 Ky., 59, 57 S. W., 
471.) So a general revision of the revenue laws was held not to repeal 
the inheritance tax law, nor a law imposing a privilege tax on railroads; 
the new law being silent on those subjects (Zickler v. Union Bank and 
T. Co, 104 Tenn., 277). A revision of the law in regard to local improve- 
ments was held not to repeal a provision of the former law prescribing 
a special limitation in regard to suits to set aside or enjoin a special 
assessment (Kansas City v. Kimball, 60. Kan.224, 56 Pach 78).7 tee 
R. C. L., at p. 925, it is said, “It has, ‘however, been held that the omission 
of a statute from a revision does not effect its repeal, although all statutes 
within its purview which are not contained within it are expressly repealed 
by it, if no provision in the revision attempts to deal with the subject matter 
of the omitted statute,” citing Hammer v. State, 173 Ind., 199, 21 Ann. Cas., 
1034, 24 L.’R. A. (n. s.), 795. Black Handbook on the Construction and 
Interpretation of the Laws (2d ed., 1911), at p. 593, notes of the Revised 
Statutes of the U. S. (1873), “ Where it is found that an act of Congress 
which is an independent statute, permanent in character, although special 
in its application, and_not repealed by any act prior to the revisiOn of the 
statutes, has been omitted from the Revised Statutes, it nevertheless con- 
tinues jn force,” citing Peters v. U. S&S. 2 Okla., 116, 33 Pac., 1031 

* Other variable and important factors in determining the effects of 
codification (which need not be discussed here since the repealing clauses 
of the Consolidation Act of 1882 and of the charters have been examined) 
but which may hopelessly differentiate seeming analagous cases, are: (1) 
Do legislative history and other antecedent events indicate an intention 
to revise completely; (2) Does the revision expressly declare itself to be 
a codification and in what language? (3) Does it expressly declare that 
non-reptgnant acts shall continue? (4) Does it expressly repeal certain 
acts and, if so, is such repealer expressly qualified to protect against the 
implication that the acts which it does not mention are continued? 


SOURCES TODAY—SPECIAL CITY LAWS 51 


the subject of the Consolidation Act? Or what shall we con- 
sider to be the’subject of an act, dealing, say, with a phase of 
street openings, which the Consolidation Act omitted? Shall 
we say “New York City,” or, rather, “ assessments”? If the 
former, it can be argued from the usual rules for the construc- 
tion of codes that the Consolidation Act automatically repealed 
all prior laws touching New York City. 

The problem just stated has not been adjudicated squarely. 
The question of the subject of the Consolidation Act was raised 
obliquely in another connection,! because of alleged conflict 
with the constitutional provision that “no private or local bill, 
which may be passed by the legislature, shall embrace more than 
one subject, and that shall be expressed in the title.”2 If the 
point were strained, it would embarrass every city charter. One 
escape is to follow an earlier case which held that the New York 
City charter of 1857 was neither private nor local. A more 
sensible solution, and one which the later cases already cited 
have terded to apply, assumes that a charter is both special and 


*People ex rel. 2d Ave. R. Co. v. Coleman (1889), 51 Hun., 640, 4 
N. Y. Supp., 417, in which L. 1885, ch. 311 was attacked as unconstitutional 
because its title stated simply that it was an act to amend L. 1882, ch. 410. 
The court held that if any fault existed, it was in the Consolidation Act, 
yet to demand that the title of that act should fully describe its contents 
would be to defeat the very purpose of the constitution. In re McAdam 
(1889), 7 N. Y. Supp., 454, aff’d 54 Hun., 637, upheld against a similar 
charge of unconstitutionality, L. 1884, ch. 516, the title of which stated 
that it amended L. 1882, ch. 410, “in relation to commissioners of 
accounts.” The court found that this title was more explicit than that 
of the Consolidation Act; the title of the latter, the opinion implied, was 
suitable for its purpose, saying that the Consolidation Act “was virtually 
a charter of the city of New York.” In People v. Kane (1900), 43 App. 
Div., 472, 473, 61 N. Y. Supp., 632 (aff’d. on opinion below, 161 N. Y., 
380), it was said of the Greater N. Y. Charter: “It is of no moment that 
the provisions of law violated or evaded are contained in different sections 
of the charter. The charter is one statute * * * and the eye of the 
au eS regards it. The division thereof into chapters and sections is but 
ormal.” 

7 Art. 3, sec. 16, in both the Constitutions of 1846 and 1894. 

* Phillips v. Mayor, etc., of N. Y. (1857), 1 Hilt., 483, 488, in which 
Justice Ingraham of the Court of Common Pleas said in part: “I am not 
prepared to admit that the act in question is either a private or a local bill. 
It can in no sense be called a private bill * * * Nor do I think such 
an act, devolving upon others the powers which the legislature possesses 
for the purposes of government, can be called a local act.” Citing Connor 
v. Mayor, 1 Selden 285, he continued : “‘ With much greater force may these 
remarks be applied to a statute providing for the government of a large 


52 STATUTORY SOURGEHS OF GN Tiyy i 


local but that, from the standpoint of constitutional restrictions 
on enactment and entitling statutes, a charter must for prac- 
tical reasons be regarded as embracing only one subject. Could 
this construction be borrowed in the application of the theory 
of codification to the question of implied repeal in connection 
with Consolidation Act? It has never been suggested. Instead, 
the cases which have discussed the relation of the Consolidation 
Act to prior acts have always thought of the subject of both 
acts in terms of phases of city activity, not the whole of it. 

The theory of codification, then, leads surely to no automatic 
conclusion; it throws us back, as the repeal of any piece of 
prior legislation comes into dispute, upon a judgment in the 
comparison of the subject-matter of the old and the new. 


The Legislatwe Heritage of Communities Absorbed m Greater 
New York. 


In addition to the uncertainty in the location of old law 
affecting the former City of New York which the Consolidation 
Act of 1882 left to the present day, it is necessary, if the sources 
of city government are to be encompassed, to note another ele- 
ment of uncertainty which was created by the amalgamation 
of three existing cities and of a number of minor municipalities. 
The Greater New York Commission based the charter of 1897 
largely upon “legislation already upon the statute books in 
relation to one or the other of the cities to be consolidated into 
Greater New York.”! The law of old New York was not 
exclusively used. “Where the local laws have differed,” the 
Commission reported, “in matters financial and relating to 


portion of the territory and property of the state, delegating powers of — 
legislation and authorizing the passage of laws as well as the administra- 
tion of them, which in their operation affect all citizens of the state, who 
either in their persons come within their range or whose property is within 
the limits of that jurisdiction * * * Nor do I think that the provisions 
of the statute can be said to be of more than one subject. The act was 
intended to provide or add to the charter of the city.” 

* Report made by the Commission which prepared the Greater New 
York Charter to the Legislature, Feb. 18, 1897 (as printed in Birdseye, 
The Greater New York Charter, p. xxxii). 


SOURCES TODAY—SPECIAL CITY LAWS 53 


property, the law of New York has generally been given the 
preference; in matters indifferent, the best law, in the opinion 
of the commission, obtaining in any of the three cities has been 
maintained * * *,” In any case, and regardless of the 
former municipality from which it was taken, such borrowed 
legislation was declared “to be not a new enactment, but a 
continuation.’”! 
But the process did not consist merely in the express copying 
of provisions applicable to the various communities. The 
Greater City took over, along with the areas which it combined, 
an uncatalogued dowry of law. The opening sections of the 
charters of 1897 and 1901 declared the Greater City “to be the 
successor corporation in law and in fact of all the municipal and 
public corporations united and consolidated * * * with all their 
lawful rights and powers, and subject to all their lawful obliga- 
tions, without diminution or enlargement except as herein other- 
wise specially provided.”2 Lest there be possible doubt, the 
closing sections of the charters of 1897 and 1901 incorporated 
broad saving clauses regarding the formerly separate municipal- 
ities, saying: “their powers to the full extent of legislative 
power in this behalf are respectively devolved upon the corpora- 
tion of The City of New York as herein constituted and the 
municipal assembly thereof, unless otherwise expressly provided 
in this act or by law,’? and that “any grants of franchises or 
properties or rights of any nature * * * granted by said 
state to the City of Brooklyn or to any of the other municipal 
and public corporations which are herein united and consolidated 
* %* * are to all intents and purposes hereby ratified, granted, 
confirmed and extended to The City of New York as constituted 
by this act.’’4 

But the legislative heritage of the several communities was 
not saved to the Greater City by these broad clauses alone. There 


*Sec. 1608, L. 1897, ch. 378, repeated as sec. 1608 in L. 1901, ch. 466. 

?Sec. 1, L. 1897, ch. 378, repeated in L. 1901, ch. 466, See also sec. 3, 
in both acts, for a reiteration of the idea in slightly different terms. Secs. 
4.5 relate especially to the devolution of debts. 

* Sec. 1615. Here, as in the citations following on this point, the section 
Beene and text are the same in both L. 1897, ch. 378, and L. 1901, ch. 


* Sec. 1617. 


54 STATUTORY SQURCES OREN GW ey On 


was also a devolution of power upon particular agencies in the 
new government. The Board of Aldermen, aside from the fact 
that it was declared to possess any unassigned powers directly 
granted to or devolved upon the corporation,! was expressly 
vested with all powers and duties conferred at the time of consol- 
idation “ upon the common council of the City of Brooklyn or of 
Long Island City, or upon any board, body or officer of any of 
the municipal and public corporations or parts thereof, consoli- 
dated with The City of New York.’”2 The Board was further 
vested, by another section, with “ Any and all of the powers and 
duties of the several boards of supervisors heretofore existing in 
any of the counties within the territory of City of New York not 
transferred or devolved upon administrative departments, boards, 
commissions, officers or other functionaries * * *’’8 

More important, perhaps—inasmuch as the powers possessed 
by a city are normally assigned by law to some particular part of 
its organization—were the clauses, scattered through the several 
chapters of the charter, which devolved upon each important 
administrative department all unenumerated and _ consistent 
powers and duties of its predecessors in all parts of the area of 
the Greater City.4 Space does not permit an examination of the 
provisions by which this device was applied to the Commissioners 
of the Sinking Fund,® the Police Department, the Borough 
presidents in respect to highways’ and sewers,® the Department 
of Water Supply, Gas and Electricity,® the Street Cleaning De- 


* Secs. 1 (in part) and 4. 

*Sec. 42. The ordinances of the superseded municipal councils were 
continued, in so far as consistent, by sec. 41. 

* Sec. 1586. 

*It is not in point here to consider (1) numerous sections devolving 
jurisdiction (e. g., 695) or property e. g.. 275, 608, 724, 817), nor (2) 
those continuing the powers of former N. Y. C. agencies, even when ~ 
extended to the Greater City (e. g., 243, 945), nor (3) the devolution upon 
a city department of all powers of a particular agency, as the Trustees of 
Brooklyn Bridge (601), nor (4) partial examples, as the devolution of 
powers of the building department of the city of Brooklyn on the super- 
Bey of buildings in that borough (sec. 646, renumbered 408 in 1901 
charter ). 

* Sec. 204; see also, on particular~phases of the sinking fund system, 
secs. 207, 208, 209, 211, 221. 

* Sec. 274. 

- "Sec. 388. 

* Sec. 389, 

epec.col7/: 


SOURCES TODAY—SPECIAL CITY LAWS 55 


partment and the Borough presidents of Queens and Richmond 
Boroughs in regard to street cleaning,! the Park Board,? the 
Department of Taxes and Assessments,? the Department of 
Education,t and the Department of Health.6 A single illustra- 
tion must suffice to show how broadly these provisions were 
couched. The Board of Taxes and Assessments was declared to 
possess, in addition to its stated powers and in so far as com- 
patible with the express terms of the charter, “ All of the rights, 
powers and duties heretofore devolved by law upon the board of 
taxes and assessments in The City of New. York, upon the depart- 
ment of assessments of the City of Brooklyn, and upon like de- 
partments, boards or officers of taxes and assessments other than 
for street improvements in the other municipal and public cor- 
porations or parts of municipal and public corporations consoli- 
Boreceoynis.act)*)* *.176 

As active sources of power, these grants have always been 
more theoretical than real and, naturally, have been of diminish- 
ing importance. Attempts to appeal to them have been made,’ 
however, and the possibility remains. As long as it does remain, 
the boundaries of the statutory sources of New York City’s pres- 
ent government are pushed out and back into the legislative his- 
tories of several municipalities, especially Brooklyn. There the 


* Sec. 547. 

* Sec. 616. 

* Sec. 886. 

*Sec. 1058. This was not repealed by L. 1917, ch. 786, amending the 
General Education Law (Con. Laws, ch. 16), which superseded some 30 
sections of the charter. 

*Sec. 1168. 

* Sec. 886. 

* Queens Co. Water Co. v. Monroe (1903), 83 App. Div., 105, 82 N. Y. 
Supp., 610; Heymann wv. Steich (1908), 114 N. Y. Supp., 603, aff’d, 118 ibid. 
1113, aff'd 201 N. Y., 578. Neither of these cases sustained the particular 
contention regarding devolved power which was advanced in each but, | 
in rejecting these particular claims, neither denied that powers of the con- 
solidated municipalities devolved on the Greater City and that this fact 
might be made the basis of present-day action. Most of the cases which 
have concerned the organization or powers of Brooklyn or the other muni- 
cipalities have arisen out of the temporary difficulties of transition from 
separate municipalities to the Greater City; for example: (1) settlement 
of claims, Carey v. Wurster (1898), 31 App. Div., 553, 52 N. Y. Supp. 
160; Im re Vacheron (1900), 51 App. Div., 182, 64 N. Y. Supp., 503; (2) 
transfer of personnel, McKenna vw, City of N. Y. (1898), 34 App. Div., 152, 
54 N. Y. Supp., 634; (3) transfer of functions, People ex rel. Quinn vy. 
eee (1898), 30 App. Div., 241, 51 N. Y. Supp., 1094, aff’d 156 N. Y,, 


56 STATUTORY SOURCES OF NEW YORK 


boundaries are left, as far as Brooklyn is concerned, with less 
uncertainty of frontier than has been noted in connection with 
the New York City Consolidation Act of 1882. The legislation 
affecting Brooklyn had scattered as the New York City law had 
done. It had been drawn together and revised in 1888.1 For- 
tunately this dealt with the question of repeal more conclusively 
than did the New York City Consolidation Act of 1882. It 
expressly stated that “all local and special acts passed prior to 
Jan. 1, 1888, relating to the corporation of the City of Brook- 
lyn'* * * are hereby repealed. 


The Royal Grants as Continuing Sources of Cty Government. 


The royal grants survive as part of the city’s law. The several 
constitutions of New York expressly preserved them,’ although 
not against amendment subsequently by acts of the legislature.* 
The Greater City Charter was even more explicit than the 


*L, 1888, ch. 583, “An Act to revise and combine in a single act all 
existing special and local laws affecting public interests in the city ot 
Brooklyn.’ The commissioners who prepared this revision were appointed 
under L. 1886, ch. 626. See Report of Law ear tak of Brooklyn, 
1884, p. 57, in volume entitled, Mayor's Message 

2'h leading case, People ex rel. Ullrich vw. ete PAG 4 N. Y. Supp., 
869, held that where the substance was repeated, the revision was to be 
regarded as a continuation of prior existing law and the re-enactment of 
a regulation based upon an earlier and superseded act was unnecessary. 

* Const. 1777, art. 36: “* * * that nothing in this constitution con- 
tained shall be construed * * *- to annul any charters to-bodies-politic 
by him or them * * * made” (referring to King or his agents) ; repeated 
in Const. 1821, art. 7, sec. 14; in Const. 1846, art. I, sec. 18; in Const. 1894, 
art. I, sec. 17. The effect upon the statute of October 14, 1732 (ch. 584), 
in confirmation of the previous royal grants, of the provision of December 
10, 1828 (2 Rev. Stat., 779, sec. 4), that “no statute passed by the govern- 
ment of the late colony of New York shall be considered a law of the 
State,” would present no present problem even if the Greater City Charter 
did not expressly mention the act of 1732. 

*Demarest uv. the Mayor, etc., of City of N. Y. (1878), 74 N. Y., 161, 
which involved an action against the abolition of the board of assistant 
aldermen by the charter of 1873, the court saying: “The Dongan and 
Montgomerie charters have no peculiar sanctity because they were 
granted under the sovereigns of England. They were public charters 
granted for public purposes and are as much subject to legislative control 
as charters of the same kind granted by the legislature of the state.” As 
for the constitutional proviso, it said: “This provision is not a restraint 
upon legislative power, but simply a declaration that the constitution itself 
shall not annul such charters.” Against this viewpoint, which is the 
merest commonplace today, see, as an example of an earlier attitude, Kent, 
The Charter of the City of New York with Notes Thereon (1836), 
“Corporate franchises in this country rest upon a basis which ought to 
be at least as solid as Magna Charta, for they are founded on grants that 


SOURCES TODAY—SPECIAL CITY LAWS 57 


previous legislative charters! in conserving ““* * * grants of 
franchises or properties or rights of any nature in, to or concern- 
ing property of any character or other grants made by the Nicolls’ 
charter, the Dongan charter, the Cornbury charter (so-called), 
the Montgomerie charter, by the confirmatory act passed the 
fourteenth day of October, Seventeen hundred and thirty-two ” 
* * *, which it declared “are to all intents and purposes hereby 
ratified, granted, confirmed and extended to The City of New 
York as constituted by this act.’ 
_ The growing detail of legislative enactment early began to 
elaborate upon, and by that very process was soundly held to 
restrict, the broad terms of the royal grants. 

Even in later years, however, appeals to them as sources of 
power were made from time to time. In 1878, for example, the 
Court said: “ The corporation of the City of New York has plen- 


are contracts, and ‘no state,’ says the constitution of the United States, 
“can pass any law impairing the obligation of Contracts’” (1851 ed., p. 
203). For a further indication of early uncertainty on the point, see 
Furman v. Knapp (1821), 19 Johnson, 248, in which the court remarked, 
“Tt is not necessary, therefore, to discuss or consider here how far the 
legislature, without the consent of the corporation, might modify or change 
the charter.” 

Se ato. ch. 122, Sec. 26, L.°1849" ch. 187,-sec. 28, and. L. .1853,\ ch: 217; 
sec. 18, spoke merely of “the charter of the city of New York and the 
several acts of the Legislature amending the same,” which they declared 
repealed so far as inconsistent, but otherwise continued. L. 1857, ch. 446, 
sec. 54, and L. 1870, ch. 137, sec. 120, provided: “* * * but the char- 
ter(s) of the city of New York, known as the Dongan and Montgomerie 
charters, so far as the same or either of them are now in force, shall con- 
tinue and:remain in full force, and shall not be construed as repealed, 
modified, or in any manner affected hereby.” L. 1873, ch. 335, sec. 119, was 
not so loose: “ The charters of the city of New York, known as Dongan 
and Montgomerie charters, so far as the same or either of them are now 
in force, not inconsistent with the provisions of this act, shall continue 
and remain in full force.” The Consolidation Act of 1882 reprinted 
nothing of this, although giving a part of sec. 119 which had to do with 
another matter; this might be taken as an argument against the idea of 
repeal by omission, since all commentators assumed the royal grants 
continued in force. 

* Sec. 1617, in both L. 1897, ch. 378, and L. 1901, ch. 466. 

* Mayor, etc., of N. Y. v. Ordrenan (1815), 12 Johnson 122, representing 
the question whether an ordinance which imposed cumulative fines for 
keeping gunpowder except under certain conditions was valid. The court 
held that it was not, saying: “If it be conceded, that the by-laws in ques- 
tion were authorized by the general powers conferred by the charters, 
upon which we express no opinion, the application by the corporation to 
the legislature, and the latter having, in several instances, legislated on 


58 SBATUTORY SOURCES. OF NEW YORK 


ary power over the making, repairing, improving and paving of 
the streets of the city. That power was conferred by the Dongan 
charter and confirmed by the Montgomerie charter, and still ex- 
ists unimpaired.”! Less conclusively, it was said in 1895: “ The 
broad powers for purposes of municipal government possessed 
by the common council of the City of New York, derived from its 
ancient charters and modified and enlarged by subsequent stat- 
utes, include, to the fullest extent consistent with constitutional 
limitation, the power to control and regulate the public streets.’ 

But when, in 1916, the city sought, among other bases of 
power, to find in the original royal grants a sanction for its attempt 
to compel the relocation of tracks on Central Park West, the 
Court waved the contention aside, saying: “The assertion and 
the argument of the appellant that the power in question was 
bestowed by the ancient charters of the city and has devolved to 
it need not detain us. Neither their language or intent nor the 
contemporaneous conditions support the assertion.” The terms of 
the Greater City Charter, already quoted, might properly be held 
to confine the continuing authority of the royal charters to the 
peculiarly proprietary activities of the city, which, although at 
one time sharply controversial? and still important, may be re- 
garded as fairly well adjudicated. 


the subject matter of the by-law, operates as a limitation to any general 
and undefined powers in the charters” (p. 125). When Brick Presby- 
terian Church v. Mayor, etc. of N. Y. (1826), 5 Cowen, 538, presented 
the question of the validity of an ordinance which prevented burials upon 
a plot which had been granted earlier by the city for purposes of “ quiet 
enjoyment,’ the city authorities did not attempt, in the face of the 
Ordrenan case and the fact that the legislature had acted in regard to the 
city’s control of such matters, to appeal to the powers of the original 
charters. So, also, in Coates uv. Mayor, etc., of N. Y. (1827), 7 Cowen, 585. 

*Moore v. The Mayor, etc., of New York (1878), 73 N. Y., 238. 

* Jorgensen v. Squires (1895), 144 N. Y., 280. 

* People ex rel. City of N. ¥: o SN Yo RR. Com (1916) 217 Naa se 
312. The unfavorable decision was followed by a charter amendment, L. 
1917, ch. 692, adding sec. 242c. 

“As an example of how nicely the lines of the controversy over New 
York City rights (here, jurisdiction to low water on the Long Island 
shore), were once drawn, cp. Udall uv. Trustees of Brooklyn (1821), 19 
Tohnson, 175, which held that a weigher licensed by New York City could 
not operate on a fixed dock, with Stryker v. Mayor (1821), 19 Johnson, 179, 
holding he could operate on a floating vessel on the Brooklyn shore. See 
also Hoffman, Treatise upon the Estate and Rights of the Corporation 
of the City of New York as Proprietors (1853); Gerard, A Treatise on 
the Title of the Corporation to the Streets, Wharves, Piers, Parks, Ferries, 
and other Lands and Franchises in, the City of New York (1872). 


CHAPTER III. 


THE SOURCES TODAY—GENERAL LAWS. 


The Problem of Parallel General and Special Legislation an Un- 
avoidable Complication—The Usual Rule of Adjustment—Its 
Application in New York State—Its Application to the General 
City Law, the General Municipal Law, and the Civil Service Law— 
A Decade’s Legislation Examined—The Use of Classification of 
Cities in the Consolidated Laws—Legislation Affecting Judicial 
Organization, Precedure, and Penalties—Legislation for Counties— 
The Problem of a Better Adjustment of Special and General Law 
—The Common Law as a Source—Summary. 


The quest for the sources of the law affecting New York City, 
if it is exhaustive, must carry one beyond legislation which, 
whether recent or very old and whether assembled or scattered, 
applies peculiarly to the municipalities now combined in the 
Greater City. The existence of some genera] legislation that 
ramifies into municipal affairs seems inevitable under any system. 
Even if it were deemed desirable to drop the attempt to simplify 
state-cify relations and to lessen the vexing dependence upon 
special legislation by general provisions in behalf of certain com- 
mon local activities or certain classes of cities, the necessity would 
remain for general enactments on penal offenses, judicial pro- 
cedure, and other matters which are woven in the fabric of 
municipal government. Problems of conflicting law follow in- 
evitably. 


The Usual Rule of Adjustment. 


Yet the rule of adjustment! is simple; it is cumbered in its 
application only by the necessity of judgments on questions of 
intention and differences of degree. A general act will not super- 
sede a prior special act unless the general act clearly reveals an 
intention to create a uniform rule. Conversely, a special act will 


1See Sutherland, Statutes and Statutory Construction (2d ed., by 
J. Lewis, 1904), vol. I, secs. 274-8, pp. 526-38. Black, Handbook on the 
Construction and Interpretation of Laws (2d ed., 1911), p. 329. 


60 SD TATIPRORY]SOURCES (OUND NV Oe 


graft an exception upon pre-existing general law. The theory is 
that the Legislature recognizes certain exceptional conditions 
when it passes a special act and that it considers these still to 
exist when, later, it legislates generally on the same subject. The 
problem, then, is always one of intention. “ The search for it,” 
said the Court in a recent case in point,! “leads below the surface 
of verbal expression, and, piercing all disguises, goes straight to 
the purpose of the law-makers, aided by formulated rules when 
they serve, bound by no rule that obstructs the discovery of the 
tational genuine purpose of the Legislature.” 


Its Application in New York State. 


These principles have received a normal application in New 
York. It was said in a leading case in 1872;2 “A special and 
local statute, providing for a particular case or class of cases, is 
not partially repealed or amended, as to some of its provisions, 
by a statute general in its terms, provisions and application, unless 
the intention of the Legislature to repeal or alter the particular 
law is manifest, although the terms of the general act would, 
taken strictly, and but for the special law, include the case or 
cases provided for by it.” Other and later decisions along the same 
line have abundantly illustrated that general laws do not over- 


——— 


*In re Seeley (1921), 187 N. Y. Supp., 130, 133, aff'd in 196 App. Div., 
920, and 231 N. Y., 601, holding that the County Law superseded a special 
provision of 1822 for courts in Seneca County. But note in another recent 
case, the disposition to require that repeal must be express: “ The law is 
well settled that special statutes which are local in their application are 
not deemed repealed by general legislation, except upon the clearest mani- 
festation of an intent by the Legislature to effect such repeal, and such 
repeal cannot ordinarily be accomplished by implication.” People v. City 
of Buffalo (1916), 157 N. Y. Supp., 938, holding that a charter provision 
for the payment of fines to the city treasurer was not superseded by the 
Motor Vehicle Law. 

* In re Commissioners of Central Park (1872), 50 N. Y., 493, 497, hold- 
ing that a section of the R. L. of 1813, in relation to New York City, 
which made reports by commissioners of estimate and assessment _con- 
clusive and final was not superseded by a code provision in L. 1867, ch. 
497, governing the proceedings of courts; they related, the court said, to 
two different systems. 


SOURCES TODAY—GENERAL LAWS 61 


ride prior special enactments,! and the corollary that special laws 
do triumph, up to the length of the inconsistency, over pre-exist- 
ing general statutes.2 Cases have not been wanting, however, 
to show how the weight of legislative intention, especially when 
the element of codification is present, may tip the scales in favor 


* Matter of The Evergreens (1872), 47 N. Y., 216 (act for settlement 
of claims against a particular cemetery company, not superseded by act for 
sale of unoccupied burial grounds and rural cemeteries generally) ; People 
v. Quigg (1874), 59 N. Y., 83 (special act governing the collection of fines 
mow Y AC. not superseded by a more general act regarding the police 
force); Van Denburgh v. Village of Greenbush (1876), 66 N. Y., 1 
(mechanics lien law for a particular locality not superseded by a general 
- act on the subject); Whipple v. Christian (1878), 15 Hun., 321, aff’d 80 
N. Y., 523 (essentially similar to preceding); McKenna v. Edmundstone 
(1883), 91 N. Y., 231 (essentially similar to preceding); Matter of 
Altering Main Street, Sing Sing (1885), 98 N. Y., 454 (charter provision 
not superseded by general highway law); People ex rel. Roosevelt v. 
Westchester County Supervisors (1886), 40 Hun., 353 (special grant to 
town of power to appropriate for highway purposes not repealed by gen- 
eral act, despite express statement that it applied to “every town”); 
Higgins v. Bell (1889), 6 N. Y. Supp., 105, aff’d (1891), 128 N. Y., 598 
(Brooklyn charter provision for police inspection of boilers not super- 
seded by general act exempting boilers guaranteed by insurance com- 
panies); Buffalo Cemetery Association v. Buffalo (1889), 118 N. Y., 61 
(charter provision regarding assessments of cemetery lands not repealed by 
law forbidding sale of such lands for taxes); Aldinger v. Pugh (1890), 
57 Hun., 181 (special provision regarding surrogate in Oneida County not 
superseded by Code of Civil Procedure) ; People ex rel. Lardner v. Carson 
(1894), 30 N. Y. Supp., 817, aff'd (1895), 86 Hun., 617 (provision of 
Lockport charter permitting town elections within city not repealed by 
General Election Law); People ex rel. Trustees v. Dohling (1896), 6 
App. Div., 86 (provision of special act creating a corporation not super- 
seded by statute governing the exemption from taxation of the property 
of religious corporations generally) ; Lewis v. City of Syracuse (1897), 
13 App. Div., 587 (charter provision not superseded by act regulating time 
limit of damage suits in cities over 50,000) ; Casterton v. Town of Vienna 
(1897), 44 N. Y. Supp., 868, aff’d (1900), 163 N. Y., 368 (special act not 
superseded by statute governing generally the assessment of lands divided 
by town lines) ; People ew rel., Speight v. Coler (1898), 31 App. Div., 523 
(civil service; law of 1896 regarding exemption of confidential positions 
did not repeal Brooklyn charter provision) ; City of Jamestown v. Home 
Telephone Co. (1908), 125 App. Div., 1 (charter power to prevent setting 
of poles, etc., not superseded by Transportation Corporations Law); 
People ex rel. Conklin v. Boyle (1917), 163 N. Y. Supp., 72, aff’d 178 
App. Div., 908 (Public Officers Law not applied as against the more special 
provisions of the County Law, the court saying, “The conflict between 
such statutes must be resolved in favor of the legislation which is 
specific”) ; Ryan v. City of N. Y. (1920), 228 N. Y., 16, rev’g 189 App. 
Div., 49 (charter provision for police pension fund not superseded by 
Workmen’ s Compensation Law). 

* Schieffelin v. McClellan (1909), 135 App. Div., 665, app’l dissm’d 
(1910), 197 N. Y., 610, held that city was bound only by sec. 74 of charter, 
and not also by sec, 92 of prior general Railroad Law, the court saying: 


62 STATUTORY SOURCES OF NEW YORK 


of the superiority of general law.1 They have tipped more easily 
when the local provision has been an ordinance merely, since 
direct evidence has then been lacking that the Legislature has 
taken cognizance of a special situation.” 


Its Application to the General City Law, the General Municipal 
Law, and the Civil Servtce Law. 


Nor has the application of these principles differed essentially 
in the case of bodies of law which, as the General City Law® and 


“It is a well established rule of statutory construction that a later special 
statute which covers the whole subject matter of an earlier general statute, 
and which, although not repugnant to the earlier statute, embraces new 
and more specific provisions, will be held to have been intended, within 
the scope of its operations, as a substitute for and a repeal pro tanto of 
the earlier general act” (p. 669). But compare People ex rel. Kemmett 
v. Craig (1908), 60 Misc., 300, aff’d 128 App. Div., 908 (Rochester charter, 
L. 1907, ch. 755, held not to have superseded Liquor Tax Law of 1896, 
court saying legislature could not have intended to “make a farce” of 
the earlier act by giving police court exclusive jurisdiction). 

*In re City of Buffalo (1892), 18 N. Y. Supp., 771 (special act for 
acquisition of park property in particular ward in West Seneca held to 
be repealed by the Condemnation Law of 1890) ; Matter of Dobson (1895), 
146 N. Y., 357 (Brooklyn charter provision superseded by an act vesting 
the power to fix salaries of firemen of cities of 90,000 population or over, 
the court saying: “To hold otherwise, it would be necessary to disregard 
the language and general scope of the act, as well as the facts notoriously 
existing when the act was introduced and passed.”); City of Buffalo vw. 
Neal (1895), 86 Hun., 76 (charter provision for payment of fines by 
keeper of penitentiary superseded by County Law); Barker v. Town of 
Floyd (1901), 69 N. Y. Supp., 1109 (special act authorizing the erection | 
of a town hall superseded by Town Law); Matter of Troy Press Co. 
(1907), 187 N. Y., 279 (special acts regarding the designation of news- 
papers by a particular board of supervisors superseded by Second Class 
City Law and General Tax Act, the court saying: “They exhaust the sub- 
ject to which they relate and irresistibly lead to the inference that they 
should become a substitute in place of the local, previously existing 
statutes”) ; Murdoch wv. Griffenhagen (1917), 165 N. Y. Supp., 361 (special 
act regarding sheriff’s fees superseded by Code of Civil Procedure) ; 
Municipal Gas Co. uv. Public Service Commission (1920), 186 N. Y. Supp., 
541 (Special act fixing standard gas in Albany superseded by an act for 2nd 
class cities) ; In re Seeley (see comment in text and note, supra, p. 60). 

* Matter of Reddish (1899), 45 App. Div., 37; 1914 Opinions of Atty. 
Gen., vol. 2, pp. 366-70. 

*L. 1909, ch. 26, constituting ch. 21 of Cons. Laws. Its basis was in 
re 1900, ch. 327, which had consolidated some general laws regarding city 
affairs. 


SOURCES TODAY—GENERAL LAWS 63 


the General Municipal Law,! deal peculiarly with local govern- 
ments. Potentially, they bind everywhere. 

“The provisions of the City Law,” it was said in an early 
case,” “can hardly be considered as directory merely. They are 
mandatory. The wisdom of these provisions cannot be ques- 
tioned by any city which may be disinclined to comply with them.” 
Actually, their force fluctuates with the presence of charter or 
other special provisions. In this early case it was held that the 
provision of the General City Law for the appointment of exam- 
ining boards of plumbers was effective over a part of the earlier 
Geneva charter which vested jurisdiction over plumbing in the 
Department of Health; the Court seemed to be influenced by the 
fact that the general law stipulated that examining boards of 
plumbers should cooperate with the health authorities. On the 
other hand, People v. Parmerter® had already held that the terms 
of the General Municipal Law did not override special provisions 
of city and village charters regarding the issuing, signing and 
registering of municipal bonds. 

The line of demarcation is suggested in three cases which 
have involved the right of a taxpayer to inspect the books and 
papers of New York City departments. Matter of Egan* held 
that the right, in the situation there in point, must be found in 
sec. 51 of the General Municipal Law. Its dictum, in admitting 
that “special statutes relative to public documents in particular 
departments ” might prevail, however, made it easy to distinguish 
Matter of Allen,® in which access to the documents of the Depart- 
ment of Health was held to be governed by a detailed section of 
the charter (1175) in relation to that department. So, too, In re 


*L. 1909, ch. 29, constituting ch. 24 of Cons. Laws. It revised L. 1892, 
ch. 685, which had brought together a number of statutes dating back to 
L. 1840, ch. 318. The municipal corporations to which its terms apply 
unless otherwise specified comprise counties, towns, villages and cities. 

7 People ex rel. Van Dieren v. Moore (1902), 78 App. Div., 28, 30. See 
also remarks in In re Clamp (1900), 68 N. Y. Supp., 345. 

2 (1899) 158 N. Y., 385. It may be added that, without the point being 
assumed to be controversial, taxpayers’ suits have been held to be gov- 
erned by sec. 51 of the Gen. Mun. L. and sec. 1925 of the Code of Civil 
Procedure. Altschul v. Ludwig (1916), 216 N. Y., 459, followed in 
Schieffelin v. Craig (1918), 183 App. Div., 515. 

SOL LUD I ny oul 47: 

PL ADIZ) A205 IN Mok tse 1 58. 


64 STATUTORY: SOURCES OF NEW SYORK 


Thrig? held that sec. 1545 of the charter was controlling because 
this section expressly exempted from inspection documents in 
the hands of the Law Department, to which the papers in question 
had passed from the Department of Water Supply, Gas and 
Electricity. : 

Nor does the application of the principles regarding the 
relation of general and special laws differ essentially in connec- 
tion with those general acts which, like the Civil Service Law, 
relate to some underlying feature of the organization or methods 
shared by all units of government. Judicial construction of the 
Civil Service Law in relation to the charter of 1897 is instructive. 
The constitution, it will be recalled, already stated that the merit 
system should exist in every political subdivision and that “ Laws 
shall be made to provide for the enforcement of this section.’ 
A law of 1898,3 amending the existing Civil Service Act, required 
that regulations framed locally should receive the approval of the 
state commission. At the time, the Greater New York Charter 
provided that the regulations should be made by the city civil 
service commission with the approval of the mayor. In People 
ex rel, Leet v. Keller® the Court declined to apply the new require- 
ment of the state law to New York City, saying: “I think that 
the charter provisions contained a special and exclusive system 
for the classification and examination of applicants * * *, 
They manifested a deliberate intention on the part of the Legis- 
lature to take the City of New York out of the General Civil 
Service Law of the State.’ The realization of state supervision 
for New York City did not come until the charter, as amended 
in 1901, provided expressly that the local commission should 
promulgate its regulations and otherwise act in the manner de- 
fined by the Civil Service Law and “ subject to and in pursuance 
of the provisions of that law and of such amendments as may 


*( 1917) 5167 NYY oO Supp cetuon: 

* Art. V, sec. 9, added in 1894. 

*L. 1898, ch. 186. 

*L. 1897, ch. 378, sec. 123. The only form of state supervision the 
charter recognized was the submission of such reports as the state body 
might direct. Jbid., sec. 125. 

° (1898) 157 N. Y., 90, 96. 


SOURCES TODAY—GENERAL LAWS 65 


from time to time be made to it * * *.”1 The altered situation 
which has existed since 1901, being the result of these express 
and unique charter provisions, may render obsolete but does not 
reverse the earlier cases, nor does it indicate that general laws 
such as the Civil Service Law, by the force inherent in their own 
nature, affect special local legislation differently from other gen- 
eral acts. 


*L. 1901, ch. 466, sec. 123; also, to the same effect, 124. For one of the 
leading cases construing these altered provisions, see People ex rel. 
Fleming v. Dalton (1899), 158 N. Y., 175. In connection with the pro- 
posal made in the charter draft of 1911 to strike out reference to the state 
law, the Bar Association committee argued against any tendency to 
develop a separate civil service law for each municipality. Hearings before 
the Joint Committee on Cities of the Senate and Assembly, 1911, vol. 2, 
pp. 678-9. At the same hearing (pp. 1126-1166) Mr. Goodwin on behalf 
of the Civil Service Reform Association of New York attacked the same 
feature of the proposed charter, declaring that state supervision was the 
most vital safeguard and that the proposal was tantamount to the amend- 
ment of the general Civil Service Law by a special city charter. (p. 1129.) 
Mr. Ordway of the same organization reported later, “It would have 
been a terrible blow to the cause in New York City if the charter had 
been adopted in that form, so we fought it as a whole.” Proceedings of 
the Civil Service Reform League, Dec. 1911, p. 21. Yet the attack was not 
prompted by any unusual suspicion of the then mayor of New York City. 
In the previous year, the report of the N. Y. Civil Service Reform 
Association stated, “In New York City we have found Mayor Gaynor an 
effective supporter of the merit system. At the beginning of his adminis- 
tration, he announced that it was his policy in respect to appointments in 
the police and fire departments to appoint men in the exact order in 
which they appeared upon the list. * * * Later he announced that this was 
his policy with regard to all appointments.” Jbid., Dec. 1910. But no 
doubt many who fought the proposed change in the system of state 
supervision in 191] entertained some doubts when, in 1914-1915, the State 
Civil Service Commission began an investigation of the city commission 
which Mayor Mitchel combatted as “ grotesque and a scandalous perversion 
of power.” Ordered on September 18, 1914, it led through charges and 
counter-charges and some 7,/05 pages of testimony to the Report on 
Investigation of the Municipal Civil Service Commission and the Adminis- 
tration of the Civil Service Law and Rules in the City of New York, 
tendered Feb. 1, 1915 (Sen. Doc. 35), which stated, “we regret to have 
to say that the "Municipal Civil Service Commission has shown itself in 
many respects to be weak and inefficient.” (p. 141.) A reconstituted 
state commission, however, virtually repudiated these charges in a report 
rendered May 20, 1915. Mr. Nelson S. Spencer said of the whole affair, 
“The investigation undoubtedly served a useful purpose, although its 
origin was apparently malicious and its conduct unjudicial * * *. It 
developed, however, matters which needed correction not only in the 
administration under the rules but in the rules themselves, and the 
municipal commission has shown a lively disposition to profit by its 
results.” “New York City’s Civil Service,’ in National Municipal 
Review, Jan. 1916, vol. V, p. 55. 


66 


NUMBER OF GENERAL LAWS AFFECTING THE GOVERNMENT OF CITIES 
IN NEW YORK STATE, 1910-1919, INCLUSIVE. 


CHAPTER IN 
CONSOLIDATED Laws (1909) 
AMENDED 


Agricultural Law (ch. 1)...... 
Banking Law (ch. 2; rev'd, L. 

1914 .chiv369)P cer eee 
City Local Option Law (ch. 68; 

TPT OVch024) encore 
Civil Service Law (ch. 7)..... 
Conservation Law (ch. 

veo 'd. Le 1G1 1, Ch047 eee 
County: Lawa(che- 1) seen eee 
ye Relations Law (ch. 

14 
Education Law (ch. 16; rev'd, 

5191 Ochi 4 Oey ere 
Election Law (ch. 17)...:.... 
Executive Law (ch. 18)...... 
Farms and Markets Law (ch. 

695) E2017. chy S02) nero ee 
General Business Law (ch. 20). 
General City Law (ch. 21).... 
General Municipal Law (ch. 23) 
Highway Law (ch. 25)....... 
Insanity Law (ch. 27)........ 
Insurance Law (ch. 28)....... 
Labor Law (che 31)e.) oe 
Legislative Law (ch. 32)...... 
Liquor Dax Baw (chso4) 5.0 
Membership Corporations Law 

(ch235) ee eno 
Military Law (ch. 36)........ 
Navigation Law (ch. 37)..... 
Penali Law (ens 40)on sneee oe 
Poor Wawieh42)e4 eee 
Prisonawe(ch. 43) ae ae eee 
Public Health Law (ch. 45)... 
Public Lands Law (ch. 46).... 
Public Officers Law (ch. 47)... 
Public Service Commissions 

Law (ch. 48; L. 1910, ch. 480) 
Railroad Law (ch. 49; L. 1910, 

ChlaSD) aes mete eee ee 
Real Property Law (ch. 50)... 
lex Vawi(chs60)5 52a teeee 
Tenement House Law (ch. 61). 
Town Law (ch. 62) 
Transportation 

Paws (eh.63) Genet 
Workmen’s Compensation Law 

(ch. 67; L. 1913, ch. 816)... 


© le, ge. (8 'e) 6 Jo) isle) 4 bi ® le: @ [0:14 se) eve) 


0) s Suie) a! 0, 16; one 


Corporations 


Total Number which have 
affected chapters in 
Consolidated Laws..... 


Acts applying to cities which 
have not in terms amended 
Consolidated Laws......... 


Grand>Lotales7. tee 


APPLYING TO CITIES AT LARGE 


APPLYING 
TO 
FIRST- Application 
Total CLASS Some Varied 
ITIES Application Cities Expressly 
ONLY Unqualified | Excluded | with Size of 
Expressly* | City, etc.** 
i 
2 2 
2 He 2a 
4 4 AN 5 
3 3 
2 2 
3 1 2b 
18 6 41 8c 
12 re 52 7d 
1 1 at 4 
2 a see 18 le 
5 1 2 24 o. 
13 3 7 25 if 
13 he 9 36 ig 
6 4 Ne 2h 
1 1 or : 
5 3 27 
4 1 rn 3i 
2 2 oe 
5 1 4j 
1 ee 1 as ‘ 
2 ee 1 18 1k 
1 sie ae 18 : 
6 is 5 19 ; 
5 oe 5 AG 
1 Ae 1 Bie 
5 2 1 110 1l 
1 A.s Aes j11 
3 1 2 
2 1 im 
4 3 112 
3 1 218 ws 
17 1 12 5 4n 
17 16 ner 114 ae 
3 si 3 
2 1 115 
1 116 
178 24 87 2917 38 
1 4 6 3 lo 
192 28 93 32 39 


* Some cities expressly excluded: 

1 (Education) L. 1913, ch. 424 (state control of historical records; not to contravene 
duties already imposed on officers in New York and Kings Counties); L. 1914, ch. 44 (retire- 
ment scheme not to apply where one exists); L. 1918, ch. 496 (retirement of employees 


SOURCES TODAY—GENERAL LAWS 67 


other than teachers only in places over 100,000); L. 1919, ch. 181 (local historians only 
in places under 1,000,000). 2 (Election) L. 1911, ch. 542 (voting machine districts, New 
York City and Buffalo excluded); L. 1914, ch. 5, L. 1918, chs. 50, 392 (elections In cities 
having elections at other than time of general election); L. 1918, ch. 181 (provision for 
special elections, New York City excluded). % (Farms and Markets) L. 1917, ch. 813 (state 
aid for markets in places over 10,000). 4 (General Business) L. 1910, ch. 187 (city scaler 
of weights and measures, New York City excluded, but later put under act, as amended by 
L. 1917, ch. 523); L. 1911, ch. 825 (coal and coke sale regulated, but not in New York City). 
5 (General City) L. 1911, ch. 825 (repealing provisions in regard to the sale of coal and 
coke); L. 1918, ch. 546 (borrowing to meet excise tax deficiencies, except in 2nd class cities, 
this restriction being removed, L. 1918, ch. 115). ® (General Municipal) L. 1910, ch. 558 
(provision of hospitals, New York City excluded from most of terms); L. 1918, ch. 637 
(convention expenses of officials, cities of 1st class excluded); L. 1919, ch. 372 (county 
and city wholly within it may unite on memorial). 7 (Insurance) L. 1911, ch. 322 (fire 
patrols, insurance premiums, etc., in cities over 1,000,000); L. 1912, ch. 523 (boiler inspec- 
tion; not to operate in cities already having such regulation under law or ordinance). 
8 (Navigation) L. 1911, ch. 620 (harbors on Hudson above New York City). 9% (Penal) 
L. 1910, ch. 327 (persons not admitted to bar practicing in courts, in cities of lst and 2nd 
classes). 19 (Public Health) L. 1913, ch. 559 (amending health law generally, but New 
York City expressly exempted from many of its terms, and definition of health board organ- 
ization not extended to cities of ist and 2nd classes). 11 (Public Lands) L. 1916, ch. 299 
(sale of canal land, buildings, etc., confined to cities, etc., within which located). 1? (Rail- 
yoad) L. 1914, ch. 492 (tunnel railroads in cities of 1,000,000 or over). 13 (Real Property) 
L. 1910, ch. 227 (recording of conveyances, required only cities over 500,000); L. 1914, 
ch. 309 (somewhat similar procedure required in cities over 200,000). 14 (Tenement House) 
L. 1911, ch. 388 (requiring the lights in hall; applies to 1st and 2nd classes; unique in that 
rest of Tenement House Act applies to cities of 1st class only). 15 (Transportation Cor- 
porations) L. 1913, ch. 495 (stage and bus lines, cities over 750,000). 1° (Workmen's 
Compensation) L. 1919, ch. 458 (limited by terms to places within counties having board 
of supervisors, which may provide by taxation for retirement system for city, village and 
other employees. 17 (No Chapter of Con. Lawsamended) L. 1911, ch. 746 (canal terminals); 
L. 1913, ch. 149 (cities purchase canal lands); L. 1919, ch. 470 (celebrations etc., for 
veterans by cities containing one or more counties or by counties). 

**A pplication varied expressly with size, etc., of cities: 

a (City Local Option) L. 1917, ch. 624, amended by L. 1918, ch. 178 (local referendum 
system provided generally, but special procedure stipulated for New York City). 
b (Domestic Relations) L. 1912, ch. 241 (marriage, licenses, with different provisions stated 
for ist class cities); L. 1916, ch. 524 (marriage solemnization, with different officials empow- 
ered in cities over 1,000,000, 100,000 to 1,000,000, and others). d (Education) L. 1913, 
ch. 748 (vocational schools, continuation of pupils in school being required only ist and 
2nd class cities); L. 1916, ch. 182 (medical inspection required everywhere, with possibility 
of extra officers in places over 5,000); L. 1917, ch. 786, L. 1918, ch. 252, L. 1919, ch. 409 
(organization of local boards of education, with variations provided partly on basis of 
former organization partly on basis of cities over 1,000,000, 400,000 to 1,000,000, and 
others); L. 1918, ch. 409 (night schools required, lengths of term varying as between Ist, 
2nd, and 3rd class cities); L. 1919, ch. 645 (salaries, prohibition against sex discrimination 
applying to cities over 1,000,000 and amounts for each grade differing between cities over 
1,000,000 and other cities and districts). d (Election) L. 1910, chs. 428 (different provi- 
sions for cities over 1,000,000), 432; L. 1911, chs. 649, 891, L. 1914, ch. 244; L. 1916, ch. 
537 (different provisions for first class cities); L. 1918, ch. 8; all of foregoing expressly 
modifying certain of their provisions for New York City. e (Farms and Markets) L. 1917, 
ch. 803 (local markets may be established, the fees differing in ist, 2nd and 3rd class cities). 
ft (General City) L. 1916, ch. 305 (regulations of plumbers, powers elsewhere vested in 
department of health vested in examining board of plumbers- in New York City). 
g (General Municipal) L. 1913, ch. 699 (city planning commissions, appointment differing in 
cities over 1,000,000, and number of members varying in ist, 2nd and 3rd class cities). 
h (Highway) L. 1913, ch. 319 (construction of highways through cities, many provisions 
differing for cities of 1st and 2nd classes); L. 1916, ch. 72 (regulation of motor cycles, 
with saving clause for traffic regulations of cities of 1st class, and of 2nd classin county 
adjoining city of 1st class). i (Labor) L. 1913, ch. 463 (regulation of bakeries, etc.; rules 
of state department do not apply in cities of ist class); L. 1913, ch. 618 (sale of news- 
papers by minors, with slightly different procedure in enforcement for New York City 
stated). j (Liquor Tax) L. 1910, ch. 494 (hours of sale stated varied for cities of ist, 2nd 
and 3rd classes); L. 1911, ch. 298 (some provisions regarding hotels applicable only to 
cities of ist class); L. 1916, ch. 416, L. 1917, ch. 624 (regulation of many phases of traffic 
in liquor, with differing provisions as regards license fee, etc., for places in 7 population 
groups). k (Military Law) L. 1916, ch. 355 (localities can ask for military aid, but New 
York City board of estimate, not mayor merely, makes request for it). 1 (Public Health) 
L. 1915, ch. 133 (vaccination as a qualification for admission to schools required at all 
times only in cities of ist and 2nd classes, in addition to powers conferred on all cities 
and school districts when smallpox exists). m (Public Service Commissions) L. 1913, 
ch. 505 (steam power regulation, but in cities of 1st and 2nd classes having existing agency, 
such agency will act under state law and commission’s rules). (Tax) L. 1911, chs. 471, 
804; L. 1916, ch. 323; L. 1917, ch. 488 (regulating procedure in special franchise and 
other forms of taxation, making express provision of different machinery of New York 
City). o(No chapter of Consolidated Laws amended) L. 1913, ch. 313) make up, etc. 
of Tercentenary commission). 


68 STATUTORY SOURCES OF NEW YORK 


A Decade’s Legislation Examined. 


A body of general legislation, then, surrounds the special 
New York City law, sometimes over-riding the latter but oftener 
effective only where special provisions are inconclusive or are 
lacking altogether. Of what does this general legislation consist? 
Its nature is indicated in an accompanying tabulation of acts 
which, during the first decade after the consolidation of the New 
York Statutes in 1909, affected cities of the first class or cities at 
large. Such a tabulation can be only approximate. It is not 
easy to say just what legislation affects cities. Many enactments! 
refer in terms to cities or to particular classes of cities simply in 
order to limit geographically the application of some state law 
and thus to adjust it to varying economic conditions; many,” in- 
cluding numerous provisions in the Labor Law, prescribe condi- 
tions which are at least potentially of interest to local officers but 
which, because they directly impose no local function, cannot be 
regarded as affecting cities in a real sense. No two persons would 
draw the same line in excluding these from the tabulation. The 
present table must be taken on this modest basis. 

It will be observed that of the 192 general acts affecting cities 
during the decade, 178 amended in terms slightly over half of 
the various chapters which make up the consolidated laws. 
Even the casual glance will find some meaning in the manner in 


* FE. g., the Insurance Law, Cons. L., ch. 28, sec. 143, as amended by 


L. 1915, ch. 56, set fees for a broker’s certificate, issued by the state 
superintendent of insurance, at different sums for brokers operating in 
Ist, in 2d., in 3d class cities and in other places; or, to take a more 
extreme example, L. 1919, ch. 37, amended the Banking Law to permit 
banks to maintain branches in cities over 50,000, whereas previously the 
limit had been 1,000,000. 

+E. g., L. 1918, ch. 434, restricting work by male minors and women 
as messengers at night in cities of first and 2d class; L. 1917, ch. 535, 
regulating women’s hours in restaurants in such cities. Or L. 1910, ch. 
348, and L. 1911, ch. 393 (amending the General Business Law but repealed 
by the Banking Law as revised L. 1914, ch. 369), which required the 
licensing of private bankers engaged in ticket-selling, etc., in cities of 
1,000,000 or over. But cp. those just cited, which have been omitted from 
the table, with L. 1913, ch. 463, which, in amending the labor law regarding 
conditions in bakeries, stated that their execution in lst class cities should 
vest He the local departments of health; the latter has been included in 
the table. 


SOURCES TODAY—GENERAL LAWS 69 


which the legislation has scattered and in the relative frequency 
with which the several chapters have been amended in regard 
to cities: the Education Law, by 18 acts; the Tax Law, 17; the 
Tenement House Law, 17; the General City Law, 13; the Gen- 
eral Municipal Law, 13; the Election Law, 12; the Highway 
Law and the Penal Law, each 6; the General Business Law, the 
Insurance Law, the Poor Law, the Public Health Law, each 5; 
the Civil Service Law, the Labor Law, the Railroad Law, each 4. 
- There is no first class cities’ law, as such; and it will be observed 
that legislation on behalf of first class cities exclusively has been 
relatively slight, the table showing twenty-eight such statutes. 
Of the total of 192 acts covered, only fourteen were left hanging 
in the air without a formal relation to an existing body of laws. 
More than half of the latter were temporary in effect.1 

The General City Law and the General Municipal Law have 
been important but by no means primary centers of this legisla- 
tion. The pull of the specialized chapters of the consolidated 
laws has been stronger than the fact of a common municipal rela- 
tion. Aside from this, moreover, the General City Law and the 
General Municipal Law were built of legislative leavings in the 
beginning and remain too fragmentary to offer lodgment con- 
veniently to new legislation within a wide scope. The General 
City Law, for example, gives one of its fourteen active articles 
to the broad powers which were conferred on cities by the so- 
called Home Rule or Municipal Empowering Act of 19132 
other separate articles are concerned with such relatively narrow 
fields as the regulation of plumbing, of plastering, of lodging 
houses, of coal distribution, the employment of police matrons. 
The contents of the General Municipal Law are nearly as miscel- 
laneous and unequal. 


*One of these, L. 1913, ch. 788, illustrates that the ponderous arm of 
general legislation may be lifted to correct very particular situations. 
The act provided that if “in any city” of the lst class “any person” had 
made a deposit for the restoration of a side-walk, on which there existed 
a surplus, he might, by a stated procedure, apply for it within one year 
after the passage of the act. 

*L. 1913, ch. 247, infra, pp. 84-97. 


70 STATUTORY SOURCES OF NEW YORK 
The Use of Classification of Cities in the Consolidated Laws. 


The constitutional classification of cities) obviously, has not 
been the sole measure used in this legislation. At least fifteen 
of the acts that are considered in the tabulation based their oper- 
ation wholly or in part upon other population groupings.2 The 
various chapters of the consolidated laws abound in such provi- 
sions. 

The constitutional problem need not be sharpened, since deci- 
sions long ago blunted it into practical shape. The basis of a 
loose construction was expressed as early as 1877 in an opinion 
that held the old rapid transit act of 1875 to be general? By 
1898 a reluctant court admitted that it was “too late to insist 
upon a strict construction * * * we must take up that work, at 
the present time, with a liberal view of the law and of the situa- 


*N. Y. Const. of 1894, Art. XII, sec. 2 (as amended November 5, 1907, 
lowering limit of Ist class cities from 250,000): ‘‘ All cities are classified 
according to the latest state enumeration, as from time to time made, as 
follows: The first class includes all cities having a population of one 
hundred and seventy-five thousand, or more; the second class, all cities 
having a population of fifty thousand and less than one hundred and seventy- 
five thousand; the third class, all other cities. Laws relating to the property, 
affairs or government of cities, and the several departments thereof, are 
divided into general and special city laws; general city laws are those 
which relate to all the cities of one or more classes; special city laws are 
those which relate to a single city, or to less than all the cities of a class 
* * *” On the basis of the 1915 state enumeration, New York City, 
Rochester and Buffalo still comprise the Ist class; Albany, Binghamton, 
Schenectady, Syracuse, Troy, Utica and Yonkers, the second; the third 
class cities number 37. In the 1920 federal census, Niagara Falls is just 
above the 50,000 line; Syracuse, just below 175,000. 

One act, L. 1916, ch. 416, drew its lines at 1,500,000, 500,000, 50,000, 
10,000, 5,000, 1,200, and under; five acts, L. 1911, ch. 322, L. 1913, ch. 
699, L. 1914, ch. 492, L. 1919, chs. 181, 645, drew the line at 1,000,000; 
one, L. 1916, ch. 524, staked the boundaries at 1,000,000, 100,000—1,000,000, 
and below; another, L. 1919, ch. 409, at 1,000,000, 400,000—1,000,000, and 
below; one act, L. 1913, ch. 495, at 750,000; one, L. 1910, ch. 227, at 
500,000; one, L. 1914, ch. 227, at 200,000; one, L. 1918, ch. 496, at 100,000; 
one, L. 1917, ch. 813, at 10,000; one, L. 1916, ch. 182, at 5,000; one, L. 1911, 
ch. 298 discriminated incorporated places over 1,200. 

° Matter of N. Y. Elevated R. R. Co. (1877), 70 N. Y., 327; foilowed 
in Matter of the Application of Church (1883), 92 N. Y., 1 (holding gen- 
eral an act which applied to any county containing an incorporated city of 
over 100,000 inhabitants in which territory contiguous to the city had been 
mapped out in streets); also followed in People ex rel. N. Y. Electric 
Lines Co. v. Squire (1888), 107 N. Y., 593 (subway act of 1885, as amended 
L. 1886, ch. 503, held neither private nor local). 


SOURCES TODAY—GENERAL LAWS 71 


tion.”! Later, the Rapid Transit Act,? which applied to cities 
of 1,000,000 or over, was assailed on the ground, among others, 
that it was in fact special and as such had been imperfectly 
enacted. In sustaining it,? the language of the Court on this 
point showed that its conception of special legislation held more 
than a trace of the old idea that some legislation holds a propri- 
etary advantage for cities and that primary distinctions can be 
erected on this basis. The Court remarked: 


“Tt is said that because the Rapid Transit Act does not 
relate to all cities of the first class, it is a special city law 
which can be passed only as by the Constitution provided. 
Again I disagree with the contention of the appellants. 
In the first place, Rapid Transit Act was passed before 
this constitutional provision went into effect. In the sec- 
ond place, the act is not one of those contemplated by the 
provision in question. The latter contemplates laws which 
relate to municipal property and affairs and which may 
be described, as the provision does describe them, as ‘city’ 
laws. * * * It (the act) was adopted not only for the 
benefit of the cities which, of course, would be affected, 
but of the public at large, and it confers broad powers, 
including that of the granting of franchises. It is a much 
more general law than is contemplated by the provision in 
question.” 


Nor has the constitutional provision embarrassed the frequent 
legislation that varies its terms within peculiar population limits. 


* Matter of Henneberger (1898), 155 N. Y., 420, 429. The court, how- 
ever, drew the line here and held unconstitutional, under Art. 3, sec. 18, and 
Art. 8, sec. 10, a law of 1897 (ch. 286) which provided for the laying out 
of highways in towns of 8,000 or more, containing villages of 8,000 to 
15,000 population. The constitutional classification of cities was not 
involved. 

*L. 1891, ch. 4; repeatedly amended (by at least 18 acts, for example, 
between 1910 and 1918, incl.) and still one of the most important sources 
outside the charter of what is for practical purposes New York City 
legislation. 

eAcmiral realty Co. v, City of N. Y. (1912), 206 N. Y., 110, 140. 
See also Gubner v. McClellan (1909), 115 N. Y. Supp. 755, which had held 
that the Public Service Commission’s Act (L. 1907, ch. 429) was neither 
local nor private. 


72 STATUTORY SOURCES OF NEW YORK 


Thus an amendment to the election law, which in prescribing the 
methods of registration required an extra column with the per- 
sonal signatures of voters and other formalities in cities over 
1,000,000, was declared to be general in its terms.t 


Legislation Affecting Judicial Organszation, Procedure and 
Penalties. 


The table which has been presented fails to show the consider - 
able body of legislation which affects the administration of justice 
and which, standing partly inside and partly outside the charter, 
is in many instances general. Its subject-matter is in the main 
three-fold: the organization of courts, some within New York 
City being peculiar to that city, others universal in the State; 
judicial procedure, civil and criminal; penal provisions. No con- 
sistent policy regarding the inclusion of these matters in the New 
York City charter has been followed. The tendency to shift 
from the general laws of the state to the charter at least those 
portions that concerned peculiarly local tribunals has been some- 
times in evidence. Thus the Commissioners of Statutory Revi- 
sion, reporting in 1900 on their plans for the Code of Civil Pro- 
cedure, said :? “The special provisions relating to the City Court 
of New York will be included in the New York Consolidation 
Act. Many of these sections are already in that statute as well 
as in the Code, and it is believed that for the sake of convenience 
they should be in one statute only, and that it is not necessary to 
continue them in the Code.” Even when, in 1902, a special com- 
mission® brought together many scattered laws in the Municipal 
Court Act,* nearly a score of related sections in the Greater City 
charter were deliberately left untouched. 


*In re Ahern (1909), 130 App. Div., 900, 115 N. Y. Supp., 1108, aff’d 
in Ahern v. Elder, 195 N. Y., 493. 

een of the Commissioners of Statutory Revision, April 5; 1900, 
VOL? 1p.) 

°N. Y. Assembly Docs., 1902, vol. 13, No. 36. The commission 
to revise and codify the laws relating to the Municipal Court of the City 
of New York was designated by the board of justices of that court under 
L. 1901, ch. 218; it reported January 27, 1902. 
: Be 1902, ch. 580; superseded by the Municipal Court Code, L. 1915, 
ch. 


SOURCES TODAY—GENERAL LAWS nes 


An opposing tendency has been at work. In 1910 the com- 
mission to inquire into courts of inferior criminal jurisdiction in 
cities of the first class deplored the fact that “ The Charter of the 
City of New York contains many of the provisions applicable 
to these courts, and also many penal provisions which have no 
place in that instrument.”! In its recommendation that the 
charter be rid of these elements, it had the support of the New 
York Charter Commission, which, dropping detailed considera- 
tion of the field of, the local criminal courts after the advent of 
the more special investigation, planned to stop the gap until the 
law on the subject could be integrated separately from the char- 
ter by shifting most of the existing judicial provisions of the 
charter to the proposed administrative code.2 Partial segrega- 
tion was actually accomplished later. The Inferior Criminal 
Courts Act of 1910? repealed as many as thirty-eight sections of 
the charter. The New York City Municipal Court Code of 19154 
repealed nineteen sections, although it also recognized the con- 
tinuance of matter affecting the court in the body of the charter. 
The New York City Court Act, enacted in 1920 as an incident 
in the plan to revise and resolve the Code of Civil Procedure into 


*N. Y. Assembly Docs., 1910, vol. 26, No. 54, at p. 81. The commission 
was authorized by L. 1908, ch. 211; it reported finally on April 4, 1910. 

? Report of the New York Charter Commission, March 8, 1909, N. Y. 
Senate Docs., 1909, vol. 6, No. 27, p. 27. 

*L. 1910, ch. 659, “An act in relation to the inferior courts of criminal 
jurisdiction in the city of New York,’ which it defined to comprise the 
court of special sessions and the city magistrates’ courts. 

*L. 1915, ch. 279, superseding L. 1902, ch. 580. 

*L. 1920, ch. 935. Companion statutes, all submitted by the joint legis- 
lative committee on simplification of civil practice, were: Civil Practice 
Act (ch. 925), applying generally to all courts of record; Surrogate Court 
Act (ch. 928); Justice Court Act (ch. 937); Court of Claims Act (ch. 
922); an act amending the county law generally (ch. 921), containing 
many special provisions for the counties within N. Y. C., but especially 
for N. Y. County; to which its general terms are not applicable; an act 
amending the Code of Criminal Procedure generally (ch. 920); an act 
amending the Judiciary Law generally (ch. 938); and also acts amending 
the General Associations (Joint-Stock) Law (ch. 915), the General Cor- 
poration Law (ch. 916), the General Construction Law (ch. 917), the 
Executive Law (ch. 918), the Decedent Estates Law (ch. 919), the 
Condemnation Law (ch. 923), the Civil Rights Law (ch. 924), the Town 
Law (ch. 927), the State Finance Law (ch. 929), the Real Property Law 
(ch. 930), the Public Officers Law (ch. 931), the Public Lands Law 
(ch. 932), the Prison Law (ch. 933), the Personal Property Law (ch. 
934), the Legislative Law (ch. 936). 


74 STATUTORY SOURCES OF NEW YORK 


a group of practice acts, brought together the law on that sub- 
ject but confined its express repeals to parts of the former Code 
of Civil Procedure. It goes without saying that the intermediate 
courts which are shared with the rest of the state, even though 
modified within the area of New York City, are governed by 
bodies of law which exist outside the charter. 

Procedural and penal provisions, even more than judicial or- 
ganization, invite a weaving of general law in and around the 
charters of cities. The Charter Commission of 1908-9 took a 
view that was on all fours with their wish to shorten and to 
simplify : 

“The present charter contains fully 170 sections which, 
being penal in their nature, should disappear fror the 
charter proper. Many are repetitions of provisions of the 
Penal Code or Code of Criminal Procedure, and are alto- 
gether needless in the charter. Others so nearly repeat 
the provisions of one or the other code as to leave the law 
in doubt, because of the question raised as to which is 
controlling. Others, in whole or in part, are in neither 

- the Penal Code nor the Code of Criminal Procedure, yet 
in one or the other code they undoubtedly belong. All 
penal charter sections have been segregated, and we rec- 
ommend their re-enactment in a separate chapter of the 
administrative code until such time as they shall have 
been properly cared for in the Penal Code or Code of 
Griminal Procedure.’’! 


Yet, in the very next breath, they confessed the inherent diffi- 
culty in the way of any attempt wholly to segregate provisions 
of this kind on one side or the other of the line. “A few penal 
sections touching matters of peculiar gravity are retained in the 
proposed charter,” their report stated, “for the sake of greater 
clearness and in order that the charter may adequately depict the 
entire plan of city government.” 

The authors of the New York City Consolidation Act of 1882 
had sought to straddle the difficulty by a device which has already 


ee: of the New York Charter Commission, March 8, 1909, op. cit., 
Pp. 1/-0. 


SOURCES TODAY—GENERAL LAWS ce, 


been the subject of comment in another connection. Certain 
sections of the Consolidation Act were declared to contain the 
substance of parts of the Code of Civil Procedure and the Code 
of Criminal Procedure and not to “be construed as making 
any new enactment, or as repealing, modifying, amending or 
superseding any provision of either of said codes, or any amend- 
‘ments thereof * * *.1 Thus it sought to avoid confusion by 
keeping the final source of authority in this field single, although, 
one may add, it was held that the differing language of the Con- 
solidation Act might be used to clarify the meaning of the codes.? 
These provisions did not apply to the penal law, however; as to 
this the Consolidation Act merely stipulated that the new Penal 
Code,? although already enacted, should be given the same effect 
as if passed after the Consolidation Act.4 This did not prevent 
the city charter from serving as an independent source of penal 
law.> It remained possible by special act to make a certain kind 
of “conduct in the City of New York an offense and to provide 
for its punishment, even though it would not be a penal offense 
elsewhere, or would be crime of a higher degree if committed 
elsewhere.’’6 

These peculiar saving clauses of the Consolidation Act were 
not renewed in the Greater New York Charter. They are not, 
however, quite bereft of contemporary significance, in view of 
the principle which has construed the charter as a continuation 


*L. 1882, ch. 410, sec. 2143. 

*Deutermann v. Wilson (1888), 15 N. Y. Civ. Proc. Rep., 411. 

*L. 1881, ch. 676, “An act to establish a Penal Code,” passed July 26, 
1881, and therefore in process of formation while the Consolidation Act 
was ‘being drawn finally together. 

*For a leading case giving this effect, see People v. Jaehne (1886), 103 
N. Y., 182; see also People v. O’Neil (1888), 109 N. Y., 251. But note 
that People ex rel. Van Heck v. Catholic Protectory (1885), 38 Hun., 127, 
aff'd 101 N. Y., 195, held that the Penal Code was not to be regarded as 
having repealed anything in the Consolidation Act, since “this act was 
enacted when the Penal Code was within the knowledge and was in the 
mind of the legislature.” 

° People v. Sheridan (1888), 1 N. Y. Supp., 61, 48 Hun., 620 (dropping 
from Penal Code provision vs. sprinkling salt on streets did not repeal a 
somewhat similar provision in the N. Y. C. Consol. Act of 1882, although 
both items were derived from same prior oe People v, Rontey (1889), 
4 N. Y. Supp., 235, 51 Hun., 640, aff’d 117 N. Y., 624 (Consol, Act provi- 
sion regarding proprietors of pharmacies not btecicl by the Penal Code 
provision regarding clerks in such places, the two being different). 

° People ex rel. Smith v. Van de Carr (1903), 86 App. Div., 9. 


76 STATUTORY SOURCES OF NEW YORK 


of the Consolidation Act of 1882. In People v. Jensen, for 
example, a current charter provision, because identical with a 
section of the Consolidation Act, was held to be affected by an 
amendment added to the Penal Code in 1884. But the device it- 
self was abandoned. Penalties and procedure have become the 
subjects of undifferentiated masses of legislation outside as well 
as inside the charter. How widely a code of procedure must 
touch the miscellaneous aspects of a large local government may 
be judged from the fact that, when the old Code of Civil Pro- 
cedure was broken up in 1920, its subject-matter was distributed 
into twenty-two acts, of which only five were exclusively prac- 
tice acts and of which fourteen were chapters of the consolidated 
laws that the casual view would never associate with judicial 
procedure. 


Legislation for Counties. 


Legislation for counties, in view of the fact that those within 
Greater New York have been nearly stripped of all save judicial 
and recording functions, has been closely related to the bodies of 
law which have just been discussed. Like them, it is part of the 
uncertain context of the charter. The former powers of county 
boards of supervisors devolved broadly on the Greater City; the 
delimiting of the boundaries of Queens County in 1898? elim- 
inated the last case of overlapping by a county partly within 
and partly outside the city limits; a constitutional amendment of 
18992 opened the way for a sweeping clause in the charter of 
19014 regarding the transfer of county functions. 


* (1904) 99 App. Div., 355, aff’d by memo. (1905), 181 N. Y., 571. 

*L. 1898, ch. 588. 

“N. Y. Const., 1894, Art. ITI, sec. 26, as amended November 7, 1899, 
reads in part: “In a city which includes an entire county, or two or more 
entire counties, the powers and duties of a board of supervisors may be 
devolved upon the municipal assembly, common council, board of alder- 
men, or other legislative body of the city.” 

He 1901, ch. 466, sec. 1586: “Any and all of the powers and duties of 
the several boards of supervisors heretofore existing in any of the counties 
within the territory of the City of New York not transferred or devolved 
upon administrative departments, boards, commissions, officers or other 
functionaries, are hereby vested in the board of aldermen of the City of 


New York.” This was less qualified than the sec. of the same number in 
L. 1897, ch. 378. 


SOURCES TODAY—GENERAL LAWS 77 


Much of the legislation affecting the counties within New 
York City is general, or at least ostensibly general. More, per- 
haps, is frankly special. Such bills need not be submitted to the 
city authorities, even when they involve a direct city charge,! 
although through friendly intention? or mere inattention? they 
have sometimes been put informally before the Mayor. Each 
year has seen county legislation scattered further afield. 

Thus the session of 1920 passed twenty-eight acts that ex- 
pressly named particular counties within New York City; of 
these, twenty-two applied to a single county, six named counties 
in combination. Two other acts, although in form general, were 
qualified by particular population limits that confined their effect 


* See, é. McGrath v. Grout (1902), 171 N. Y., 7, which held that L. 
1901, chs. 704- 5-6, making certain offices in Kings County salaried and 
dependent on city funds, were not special city laws; it was said they did 
not “affect the city government, its property, or its particular affairs.” 
In 1916, as a phase of the program of the Joint Legislative Committee 
on the Finances of New York City, a proposed constitutional amendment 
requiring the submission of bills affecting counties within a city to the 
city authorities was introduced (S. Int. 602, S. Pr. 634, by Sen. Brown) 
and passed the Senate April 12 by a vote of 29:20. 18 of the negative 
votes were cast by New York City members, 15 being Democrats (7 from 
N. Y. Co., 6 from Kings, 2 from Bronx Co.) and 3 Republicans (2 from 
Kings, 1 from N. Y. Co.). The opposition included no less than three 
gentlemen who, then and since, have been the tireless floor leaders of their 
a ty the champions of the city in the Senate. N.Y. Sen. Jour., 1916, 
p. : 

* The instances have not been numerous in the aggregate. See table, 
in Appendix A. In 1922, the Governor submitted a score of county 
salary bills to the Mayor and followed him in disapproving all of them. 
bee of the Committee on Legislation of the Citizens’ Union, 1922, p. 


°L. 1921, ch. 586 (involving a salary increase in the office of the 
County Clerk of Kings), was, while a bill, sent to the Mayor along with 
special city bills. The legislative clerk attempted to recall it, alleging 
a mistake. The Mayor vetoed it, but it received the Governor’s signature, 
Report (typewritten) of N. Y. C. Law Department, Legislative Bureau, 
on Session of 1921, p. 9. In 1916, Mayor Mitchel vetoed a bill (later L. 
1916, ch. 600) in relation to the liability of the Register in N. Y. Co. for 
mistakes in official searches. Advised by the Attorney General that it 
was not a special bill, Gov. Whitman signed it. Report of Law Department 
of City of New York, 1916, p. 39. In view of the evident element of 
ambiguity in sec. 2 of Art. XIJ, providing for the local reference of city 
bills, it is to be regretted that the proposed amendments of this section 
(such as that defeated at polls in 1922) have not at least gone further 
in clarifying the meaning of provision. An illustration of the confusion 
in procedure which such proposed amendment evidently seeks to_correct 
is afforded in People ex rel. Boyle v. Cruise (1921), 231 N. Y., 639, 
aff’g 197 App. Div., 705, 189 N. Y. Supp., 338. 


78 STATUTORY SOURCES OF NEW YORK 


largely to counties within the Greater City or on its immediate 
borders. Two-thirds of the total number involved the fixing of 
salaries or other compensation, being, with one exception, man- 
datory as far as the central city authority was concerned; two 
others involved the fixing of the number of subordinate em- 
ployees. Such legislation, thrown off at about the same rate at 
each session, is nowhere assembled. It amends neither the char- 
ter nor any large body of general law. Only ten of the thirty 
acts under consideration, for example, related in terms to the 
County Law or to other chapters in the Consolidated Laws. 


The Problem of a Better Adjustment of Special and General Law. 


The survey which has occupied the preceding paragraphs has 
at least suggested the width and variety of the general legislation 
that may affect city affairs. Unless express directions are at- 
tached, the relations of general law and charter provisions can 
be decided only upon the basis of the broad principles already 
stated. Express directions in the general statutes themselves have 
sometimes mitigated the problem. It is easy to exempt a particu- 
lar city outright from all or part of an act. It is easy and, in 
view of the tendency to resolve doubts against general law, more 
important to make the act expressly inclusive, as: “ wherever the 
provisions of this act are in conflict, either direct or implied, 
with any provision of any present or future charter, local regu- 
lation or ordinance * * * the provisions of this act shall in all 
cases govern”;! or, “the provisions of this section shall apply 
to all cities of the State, including the City of New York;’” or, 
again, “ notwithstanding the provisions of such general or special 
law” as may already exist.2 But such qualifications are hard- 
and-fast. Flexible directions are sometimes attempted: as, after 
stating a certain method of choosing an officer, “ or in such other 
way as the city charter shall designate ;’’4 or, to cite another ex- 


*L2 1913,-ch, 774. 
“ds. AGO che oOo: 
P Lad Gi ehiace 
SL LOL chigace: 


SOURCES TODAY—GENERAL LAWS i 


ample, “authority designated by the Mayor, unless the charter 
* * * designates’ ;1 or, qualifying the whole operation of the 
act, “ nor shall this section have any application to cities in which 
boilers are regularly inspected by competent inspectors, under the 
authority of local laws and ordinances.’”2 

The concluding: example shows that it is not easy to draft 
-a provision that will at once permit a flexible adaptation of the 
law and at the same time not raise more doubts than it settles. 
This, difficulty, and the prolix and dispersed condition of so much 
local law, tempts the Legislature to leave the adjustments between 
general and special legislation to time and circumstance and the 
implicit rules of construction. The failure to make the relation- 
ships express often needlessly aggravates an element of uncer- 
tainty which at the best could not be entirely eliminated under 
any practicable system of local government. 


The Common Law as a Source. 


In bringing to a close the survey of the sources, other than 
in special law, of provisions that affect New York City, it is 
necessary to mention the common law. 

Here, also, the law of the city merges without sharply-drawn 
boundaries into unmapped territory. It is an incompleteness, of 
course, shared with statute law generally. Although statutory 
provisions which expressly or impliedly show an intention to 
exhaust the rule or remedy will usually operate to repeal common 
law on the point, even though consistent, the Consolidation Act 
of 1882 was held to allow the persistence of common law. One 
expression of judicial opinion will illustrate. In Poth wv. the 
Mayor, etc., of N. Y.,3 the Court of Appeals said: 


“ While this Court has not before been called upon to 
determine whether in such actions the plaintiff's damages 
could be limited by the provisions of sec. 903, it has held, 
in many of the cases cited, that the provisions of the 


11. 1911, ch. 252. 
LE. 1913, ch. 523. 
- (1896) 151 N. Y., 16, 23. 


80 STATUTORY SOURCES OF NEW YORK 


Consolidation Act presented no obstacles to the property 
owners to pursue all remedies afforded by the common 
law. In order to arrive at this conclusion, it had to hold, 
and did hold, that the title! of the Consolidation Act re- 
ferred to applied only to such suits or proceedings in 
equity to vacate or reduce the assessment as are therein 
SMecined i= a tee. 


But the additions which can thus be brought to the written 
charter are procedural rather than substantive and concern the 
minutiae where the city touches private property rather than the 
field of broader governmental powers. For practical purposes, 
this element of incompleteness in the written charter is not 
serious. 


Summary. 


Where, then, are the sources in law of the city government 
today? It was this question that provoked the examination of 
the problems of unrepealed special law and of parallel general 
and special legislation. The discussion has shown the variety 
of the sources of law affecting New York City. These may be 
summarized in retrospect in tabular form. Even as a bare indica- 
tion, neither part of the summary makes pretense of being com- 
plete. The first part of the table, outlining the sources in special 
law, obviously fails to encompass the tangled story of the many 
partial territorial consolidations, each with its devolution of 
power, that have gone into the making of the present City of 
New York. An attempt is made to show something of the 
chronological relation of the several elements of special law, 
but it is important to remember that all remain at least poten- 
tially effective as sources of the City government. The second 
part of the table, sketching the sources in general laws, is even 
less complete. In the nature of things, its headings are no more 
than loose descriptions and the acts which it names, although 
among the most important, are merely illustrations. The sum- 
mary follows: 


*I. e., Title 3, “ Vacating and Modifying Assessments,” found in Ch. 
XVI, L. 1882, ch. 410. 


SOURCES TODAY—GENERAL LAWS 


I. 


GR Nw ¥aG, 


1. The charter. 


2. Charter 
ments. 


amend- 


= Special acts which, 
though relating ex- 
pressly and pecu- 
arly, to oN. Vos 
have not in terms 
amended the char- 
ter: 


' (a) acts since 1897 
which have 
amended neither 
Charter nor Con- 
solidation Act of 
1882; 


(b) acts since 1897 
which have in 
terms amended 
unrepealed por- 
tions of Consoli- 
dation Act of 1882, 
made applicable to 
whole of Gr. 
VEC 


— 


SOURCES IN SPECIAL LAW. 


Orupy Nee Vee; 


4, Unrepealed special 


acts, 1882-1896, 
which although re- 
lating peculiarly to 
N. Y did not 
in terms amend the 
Consolidation Act 
of 1882. 


. Consolidation Act 


of 1882 and its 
amendments, 1882- 
1896, in so far as 
the provisions of 
the act were neither 
repealed expressly 
nor repealed by 
inclusion in the 
charter (in which 
case they are con- 
strued as a con- 
tinuation of the 
earlier law); ex- 
tended to the whole 
of Gr. N. Y. C. as 
far as applicable. 


5a. Perhaps some acts 


prior to 1882, omit- 
ted by Consolida- 
tion Act and neither 
covered nor speci- 
fically repealed by 
it (such being aside 
from prior acts of 
temporary applica- 
tion, so-called, 
omitted from the 
Consolidation Act 
as a. declared 
policy). 


6. The royal charters. 


CONSOLIDATED 
MUNICIPALITIES 


7. Powers and rights 


of Brooklyn city, 
Long Island City, 
and towns and vil- 
lages in Queens and 
Richmondcounties, 
devolved by blan- 
ket clause on Gr. 
INeevicnGe 


8. 


10. 


81 


COUNTIES 


Special acts pecu- 
liarly applicable to 
5 counties within 
Greens Vaca in 
regard to judicial 
and other continu- 
ing functions. 


. Powers and rights, 


in regard to discon- 
tinued county func- 
tions, devolved by 
blanket wore on 
Gr. N Cc. 


Powers and rights 
already devolved 
upon old N : 
and Brooklyn city 
in earlier partial 
consolidations with 
N. Co, and 
Kings Co., respec- 
tively. 


82 STATUTORY . SOURCES OF NEW YORK 
II. SOURCES IN GENERAL LAW. 


SUBJECT MATTER SCOPE OF APPLICATION 


ed 


1. General acts which have amended assembled and organized 
bodies of law 
(a) relating peculiarly to local governments: 
General City Law 
General Municipal Law 
County Law 
(b) relating to proprietary governmental activities shared 
with other units of government: 
Tax Law 
Election Law 
Civil Service Law 


Public Officers’ Law All citles 
(c) relating to functions which, although local in execution, 
enjoy a state status: or 
Education Law 
(d) relating to judicial organization and procedural and Cities of Ist and 2nd 
penal matters: classes 
The Penal Law 
The Code of Criminal Procedure or 
The several civil practice acts 
The Judiciary Act = ist clase cities 
(e) relating to particular urban problems treated in acts 
at least ostensibly general in terms: or 
Rapid Transit Act 
Tenement House Act Cities in some classifi- 
(f) relating, as amendments, to the numerous subjects of cation, by population 
the chapters of the Consolidated Laws of New York. or otherwise, which in 
2. General acts which have not in terms amended any effect includes N. Y. C. 


assembled and organized bodies of law. | 
3. Common law. 


From these sources flows the law that officers and, indeed, 
citizens also must know. The uncertainties are seen in three direc- 
tions: (1) backward, the search for the law, to be sure and con- 
clusive, cannot stop even at 1882 but must go beyond the New 
York Consolidation Act and, as regards the legislative heritage 
from the municipalities on Long Island, at least back to the 
Brooklyn Consolidation Act of 1888; (2) outward, the search 
is cumbered by irrelevancy, arising, first, in the enactment of 
special laws needlessly unrelated to the charter and, second, in 
the frequent failure to minimize, by careful qualification, the 
necessary evil of overlapping general and local law; (3) inward, 
by a prolixity of text, which, for all its detail and often because 
of its detail, is not self-explanatory, as the numerous merely 
declaratory amendments of the last two decades amply prove. 

Is simplification possible? The answer can best be approached 
by reviewing legislative devices whereby it has been attempted to 
give the local authorities partial command of the statutory 
sources of their government. 


CHAPTER IV. 


ATTEMPTS TO EMPOWER THE LOCAL AUTHORITIES 
TO CHANGE THE SOURCES. 


I. The Scheme of a General Grant of Power Superimposed on 
Existing Charters—The Municipal Empowering Act of 1913— 
Did it Confer Local Power to Change Existing Law ?—Has it En- 
larged the Scope of Local Action in any Respect?—II. Conditional 
Repeal and the Replacement of Charter Provisions by Ordinances— 
(1) The Greater New York Charter and the Building Code— 
The Validity of Conditional Repeal Assumed by" the: Courts — 
An Element of Uncertainty Created—Conclusion—(2) Conditional 
Repeal of Designated Charter Sections, 1901—The Validity of 
Conditional Repeal Again Assumed by the Courts—But Serious 
Uncertainties Again Created—Conclusion—(3) Conditional Repeal 
in the Grant of Power to Change Salaries—The Evolution of the 
Provision—Early Ambiguities—The Uncertain Scope of the Pro- 
vision as Revised in 1901—Proposals to Enlarge Local Power 
Over Salaries—The Existing Provision as Precedent and Warn- 
ing—III. Proposed Application of Conditional Repeal in a Blanket 
Grant of Power to Reorganize Departments—Judicial Construction 
of the Optional City Government Law of 1914 in its Relation to 
Local Power Over the Statutory Sources of Administrative Organ- 
ization—Conclusion. 


Can the Legislature, by conferring on local authorities what 
is practically the power to set aside the provisions of existing 
law, find a short-cut past the masses of detail. in the charter and 
in other special laws affecting the City of New York? 

The question strikes deeply into the problem of the charter. 
The ultimate necessity and the greatest difficulty in charter revi- 
sion lies in the treatment of these masses of statutory detail. 
Even granted a willingness on the part of the Legislature to re- 
peal them outright in wholesale fashion and to empower the local 
authorities to deal with such matters as many of them have 
covered, a further and more serious obstacle remains: some of 
this legislation cannot be repealed indiscriminately and out of 
hand, in the absence of affirmative provisions to take its place 
and without regard to the need of unbroken continuity and 
smooth transitions in the conduct of city affairs. The difficulty 


84 STATUTORY SOURCES OF NEW YORK 


points to the desirability of schemes whereby the Legislature, 
without assuming either the risk of immediate and sweeping re- 
peal or the task of considering and mulling over the details itself, 
can empower the local authorities to change the statutory sources 
of their government by a more gradual process of replacement. 

The problem here presented can best be considered by review- 
ing past attempts. It is necessary to examine, in the first place, 
the attempt to superimpose a blanket grant of power upon exist- 
ing city charters. In the second place, coming nearer to the 
heart of the problem, it is necessary to examine the uses of what 
may be called conditional repeal, whereby certain parts of the 
charter or of other special laws affecting New York City have 
been repealed contingently upon their replacement by local ordi- 
nance. The consideration of the past uses of this latter device 
(in connection (1) with building laws under the Charter of 1897, 
(2) with a number of designated charter sections under the 
Amendatory Act of T9901, and (3) with the salary-fixing power) 
leads finally to an examination of the proposal, closely related 
to the foregoing, that the city authorities should be empowered to 
reshape administrative organization irrespective of existing law. 


I 


The Scheme of a General Grant of Power Superimposed on 
Existtng Charters—The Municipal Empowering. Act of 1913. 


The expedient of a pervasive and corrective grant of power, 
poured by a general act through the interstices of existing char- 
ters, was notably illustrated in the Municipal Empowering Act 
(or, to use its less accurate popular name, the Home Rule Law) 
of 19131 Although its purposes embraced all cities in the State 


*L. 1913, ch. 247, constituting Art. 2a (secs. 19-24, incl.) of the 
General City Law, which is ch. 21 of the Cons. Laws. The act has since 
been amended by L. 1917, ch. 483, adding 3 subdivisions to sec. 20, 24 
(power to regulate the height of buildings, etc.), 25 (power to restrict 
the location of trades and industries), and 26 (stating that the two pre- 
vious subdivisions should not apply to cities of Ist class having popula- 
tion above 240,000 and less than 450,000). It should be noted that L. 
1914, ch. 470, adding secs. 242a and 242b to the New York City charter, 
had already conferred the so-called zoning power on that city specially. 
Sec. 20a was added to the General City Law by L. 1921, ch. 230, author- 


LOCAL POWER TO CHANGE THE SOURCES 85 


and although its results, as far as judicial construction goes, must 
be traced largely in the affairs of smaller places, this act must 
be reckoned with by the student of the statutory sources of New 
York City government in search of methods whereby elements of 
flexibility can be introduced. 

It facilitates an understanding both of the purpose that was 
set for the Municipal Empowering Act before its passage and 
of the difficulties that embarrassed its operation afterward to have 
in mind the point of view of its sponsors. They drew a distinc- 
tion between power and the agencies whereby it is exercised. 
They minimized the fact that in any city under an existing legis- 
lative charter, powers are mostly vested not in the municipal 
government as a whole but in particular parts thereof and that 
for this reason power and the means of its exercise are inex- 
tricably confused! An example of the viewpoint behind the 


izing the establishment of purchasing departments, but cities of the Ist class 
over 1,000,000 were expressly excluded. The Municipal Empowering Act 
was largely the result of the joint endeavors of the Municipal Government 
Association (incorporated in 1912) and the Conference of Mayors, which, 
at its third annual meeting in June, 1912, passed the following resolution: 
“That the Mayors’ Conference urge upon the legislature the grant of 
broad, general powers to all city governments in the State, to the end 
that each city may have sufficient power to actually control its own affairs.” 
Although its enactment was doubtless facilitated by the unusual circum- 
stance of Democratic control in all branches of state government, the 
final passage of the Municipal Empowering Act did not show partizanship 
or even sharp controversy. See, however, the extravagant claims for the 
act in the Democratic Municipal Platform of 1913. N. Y. Times, August 
24, 1913, II., 2:2. The legislative history of the act was briefly as follows: 
introduced February 21 by Sen. Cullen (S. Int. 947, Pr. Nos. 1063, 1560), 
and in Assembly by Assemblyman Levy (Ass. Int. 1265, Pr. Nos. 1369, 
1804). The latter, after minor amendments, passed first, March 20, by 
a vote of 129:00 (Ass. Jour., 1913, p. 1344), but upon arrival in the Senate 
(as Rec. 344) was laid aside in favor of the Senate bill, which, after some 
amendments, passed March 26 by a vote of 43:3, those in the negative 
being Murtaugh, D., Elmira, Argetsinger, R., Rochester, and E. R. Brown, 
R., Watertown (Sen. Jour., 1913, p. 916). As Rec. 218, this passed the 
Assembly March 27, without amendment, by a vote of 131:00 (Ass. Jour., 
p. 1629). It was approved by Governor Sulzer April 10, 1913. In view 
of Sen. Brown’s opposition and his relation later, as chairman of the 
Joint Legislative Committee for the investigation of the Finances of the 
City of N. Y. (1916), to empowering legislation, it may be noted that he 
carried his opposition to the Municipal Empowering Act to the point of 
introducing, April 28, 1913, a bill (S. Int. 1818) which proposed to repeal 
the new act; it naturally died in committee (Sen. Jour., 1913, p. 1739). 

*On this point see H. L. McBain, The Law and the Practice of Munic- 
ipal Home Rule (1916), p. 111; also American Municipal Progress and the 
Law (1917), by the same author, at p. 6. 


86 STATUTORY SOURCES OF NEW YORK 


Municipal Empowering Act may be cited. Consciously speaking 
for “the little group of men in this State who have made the 
term ‘municipal home rule’ have the meaning and vitality at- 
tained by it in the last few years,” the then secretary of the City 
Club of New York said in 1915 :1 


“Far from pursuing the loose theories, to call them 
no worse, followed in some of the western states, we 
have pursued a diametrically different policy. The West 
has placed its entire emphasis upon the right of a city 
to control the form of its municipal organization. Those 
of us in the State of New York who have been working 
on this problem recently have put our whole emphasis 
upon the fact that home rule is essentially a question 
of the breadth and sufficiency of the legal powers with 
which a municipal corporation is clothed. Therefore, 
long before we thought of raising seriously the question 
as to the form of municipal organization, we sought to 
establish, for the first time in the history of the State, 
a common pool of municipal powers which each city 
shared with every other city. That was the object and 
partial accomplishment of chapter 247 of the Laws of 
A9iS 


The act, in its initial clause (sec. 19) declared that: “ Every 
city is granted power to regulate, manage and control its property 
and local affairs and isi granted all the rights, privileges and juris- 
diction necessary and proper for carrying such power into execu- 
tion. No enumeration of powers in this or any other law shall 
operate to restrict the meaning of this general grant of power, 


*Robert S. Binkerd, in Proceedings of the Academy of Political 
Science, January 1915, vol. V, no. 2, p. 72. Mr. Binkerd added in the 
course of his remarks: “It is not possible, without constitutional change, — 
to pursue this program to its ultimate conclusion * * *.” See also the 
interpretation given by Laurence A. Tanzer, who, as counsel of the 
Municipal Government Association, was the chief draftsman of the act, 
“ Legislative Interference in Municipal Affairs and the Home Rule Pro- 
gram in New York,” National Municipal Review, October, 1913, vol. II, 
no. 4, p. 602. See also a book by the former secretary of the Municipal 
Government Association, Walter T. Arndt, The Emancipation of the 
American City (1917). 


LOCAL POWER TO CHANGE THE SOURCES 87 


or to exclude other powers comprehended within this general 
grant.” The next section with its twenty-three subdivisions con- 
ferred, ‘‘ subject to the constitution and general laws,” a number 
of powers which, although entitled specific, were in fact so broadly 
drawn and necessarily so miscellaneous in content that their 
reproduction in any summary is impossible. The exercise of 
powers under the act was hedged about, finally, by fairly exact 
restrictions (inapplicable to the exercise of an existing power) 
upon procedure in the incurring of obligations and in the disposal 
of city real estate and franchises (sec. 23,2). Two provisos 
qualified the entire act. One (sec. 21), a definition, stated: 
“The terms ‘ public or municipal purpose’ and ‘ general welfare,’ 
as used in this article, shall each include the promotion of educa- 
tion, art, beauty, charity, amusement, recreation, health, safety, 
comfort and convenience, and all the purposes enumerated in the 
last preceding section.” The other (sec. 22), a saving clause, 
provided: “ The powers granted by this article shall be in addi- 
tion to and not in substitution for, all the powers, rights, privi- 
leges and functions existing in any city pursuant to any other 
provision of law.” 


Did the Municipal Empowering Act Confer Local Power to 
Change Existing Law? 


From the standpoint of the present study, the most interest- 
ing problem in the operation of the act was whether it enabled 
local ordinances to supersede the written provisions of state law. 
The language permitted, if it did not invite, confusion on this 
point. The troublesome phrases may be recalled.1. In the absence 
of provision of law or ordinance (according to sec. 23), the local 
legislative body was to determine the agency which was to exer- 


*The exact text of sec. 23, subd. 1 read: “The powers granted by 
this act are to be exercised by the officer, officers or official body vested 
with such powers by any other provision of law or ordinance (subject to 
amendment or repeal of any such ordinance) and in the manner and sub- 
ject to the conditions prescribed by law or ordinance (subject to amend- 
ment or repeal of any such ordinance), but no provision of any special 
or local law shall operate to defeat or limit in extent the grant of powers 
contained in this act; and any provision of any special or local law which 
in any city operates, in terms or in effect, to prevent the exercise or limit 
the extent of any power granted by this article, shall be superseded. 
Where any such provision of special or local law is superseded under the 


88 _STATUTORY SOURCES OF NEW YORK 


cise any particular power drawn from the act. Where, however, 
law or ordinance had already vested “such power ” in the hands 
of some agency, the new power should be carried on by it and in 
the manner already provided, “ but no provision of any special or 
local law shall operate to defeat or limit in extent the grant of 
powers contained in this act; and any provision of any special or 
local law which in any city operates, in terms or in effect, to 
prevent the exercise or limit the extent of any power granted 
by this article, shall be superseded.”’ Yet even when thus “ freed 
from the limitations imposed by such provision,” the power in 
question was to be carried on by the same body in whose hands 
it would lie if nothing were superseded. 

The authors of the act, in truth, claimed for it no revolu- 
tionary effect upon the power of city councils over the express 
provisions of existing charters! If their viewpoint, with its 
fancied distinction between power and the means of its exer- 
cise, had been kept in mind, it should not have been difficult 
to construe the intent which was shadowed in these phrases, how- 
ever serious might be the obstacles, constitutional and practical, 
in the performance of the theory. Did it not mean that, 
imagining powers as fluids and the various agencies of city 
administration as the pipes through which they flow, no 
rearrangement of existing pipes was contemplated but that, 
where some power already flowed and was restrained by some 
internal obstruction from reaching the extent to which the level 
of the new reservoir would drive it, such obstructions might 
be disregarded? But what sort of obstructions? And how could 
they be brushed aside without involving the repeal of state law 
by local ordinance? The one easily conceived application of the 


provisions of this subdivision, such power, freed from the limitations 
imposed by such provision, shall be exercised by the same officer, officers 
or official body that would be vested with the same under the provisions 
of this subdivision, if such provision had not been superseded, but the 
exercise thereof shall be subject to the limitations provided for in sub- 
division two of this section.” 

"See, for example, the moderate statement by L. A. Tanzer, op. cit. p. 
602, “This grant of power is not in substitution for, but is in addition to 
existing powers and fills up gaps in powers now existing in any city. 
Every existing power is to be exercised in the manner now provided in 
the charter of the city * 


LOCAL POWER TO CHANGE: THE-SOURCES | © 89 


provisions already quoted, which would not involve the local 
repeal of the express terms of law, would have been to hold that 
an existing charter grant of a power to some particular agency 
no longer could create an implied restriction against the further 
grant by ordinance of power along the same line. 

Judicial construction soon frowned down the notion that the 
Municipal Empowering Act permitted the alteration of existing 
charters without further legislative action. For a little space the 
idea seemed to have official sanction in an opinion of the Attor- 
ney General to the Legislature on April 30, 1913, and the 
Governor was so persuaded of the corrective efficacy of the 
new legislation that he vetoed eighty-five and signed only sixty 
special acts relating to municipal affairs. Within two months, 
however, the Attorney General (advised, it may be said, by 
the sponsors of the act) shifted his ground and took a position 
on delegation of legislative power which was as unfortunately 
narrow in the other direction.t 

Two early cases failed to be conclusive. Hammitt v. Gay- 
nor,2 it is true, held that the Municipal Empowering Act did 


* Opinions of the Attorney General of New York, 1913, vol. II, pp. 
375-82, reproducing an address before the Annual Conference of Mayors 
on June 5, 1913. The argument of Attorney General Carmody centered 
upon the unconstitutionality of any delegation of legislative power 
(although it did not pause here to explain the large police power already 
possessed by city councils), rather than upon the competence of the 
legislature to delegate an undefined power to undo what it has expressly 
done. Shortly after, the Attorney General held that the Common Council 
of Kingston could not put the city marshal, who received fees under L. 
1910, ch. 647 (amending the charter), on a salaried basis; the ground 
given, however, is that even the legislature could not by special act increase 
or decrease fees during the term of office (Art. III, sec. 18). Op. cit., 
pp. 677-9. In 1916 the State Comptroller cited the ‘address of June 5, 
1913, as his authority for holding that the council of Glen Falls could not 
fix the salary of the city chamberlain at an amount in excess of the salary 
named in the charter, yet even then he did not seem to grapple with the 
vital issue, saying instead: “ My conclusion is that the fixing of salaries 
is not one of the powers conferred generally or specifically by ch. 247 of 
the Laws of 1913, and that the provision of the Glen Falls charter men- 
tioned above, has not been superseded.” Opinions of State Comptroller, 
1916, in 9 State Dept. Rep., 466, 467. 

7(1913) 144 N. Y. Supp., 127, 82 Misc., 196, aff'd without opinion 
(1914) 150 N. Y. Supp., 1089, 165 App. Div., 909. The special act involved 
was L. 1911, ch. 669. The subdivision of the Municipal Empowering Act 
in point (sec. 20, subd. 20), provided: “ (every city is empowered} 

LO provide methods and provide, manage, and administer funds 
fo pensions and annuities for and retirement of city officers and em- 
ployees.” 


90 STATUTORY SOURCES OF NEW VOR 


not supersede an act of 1911 which had prescribed the condi- 
tions under which members of the Board of Estimate and Appor- 
tionment in New York City might retire employees; but the 
court was able to point, and it did point, to the fact that in any 
event no local action had yet been taken to supersede the law of 
1911; the dictum, which pointed in the direction of the power 

to repeal, may therefore be disregarded. Gibbs v. Luther? 
decided that the Municipal Empowering Act did not by its grant 
of power over streets supersede provisions in the charter of 
Olean which required certain preliminaries in street opening. 
Although the opinion held flatly enough that “the Home Rule 
Bill grants powers in addition to and not in substitution of the 
charter provisions, and is intended to supply omissions,” the 
bearing of the decision upon the immunity of statutory provi- 
sion from local repeal was obscured by the concern of the court 
at the dangerously unrestricted power which the Municipal Em- 
powering Act would give the common council over property 
owners in all matters of street opening and by the court’s belief 
that purely legislative powers cannot be delegated. 

Geneva v. Fenwick? was more completely decisive. In hold- 
ing that the act did not authorize the common council of Geneva 
to take action which would validate a bond issue against which 
irregularities under the existing charter provisions were alleged, 
the Court said: 


“T do not believe that by the enactment of the ‘ Home 
Rule Bill’ (so-called) the Legislature intended to confer 
on municipalities the right to over-ride plain charter pro- 


* (1913) 143 N. Y. Supp., 90, 81 Misc., 611, aff’d (1913) 158 App. Div., 
951, 143 N. Y. Supp., 1118. The judicial brows lifted a bit at the idea 
of home rule; the tone was faintly sarcastic. 

7 (1913) 159 App. Div., 621, 626, 145 N. Y. Supp., 884. The decision is 
of added interest because Gov. Sulzer had vetoed a bill in the session 
of 1913, proposing to validate the bond issue, his reason being that such 
act was unnecessary in view of the enactment of the Municipal Empower- 
ing Act. Although it is not directly in point, it is interesting to note 
that in 1918 the legislature passed in both houses a proposed constitutional 
amendment (S. Int. 1151, by Mr. Sage), attempting to add in the section 
(Const., Art. 3, sec. 18) which enumerates matters on which private and 
local bills may not be passed, two items, one of which forbade the legal- 
izing of procedure in municipal bond issues by special act. It was not 
re-enacted by the session of 1919. 


POGAL. POWER -1O CHANGE THE: SOURCES 91 


visions, ample and efficient to accomplish a given purpose. 
To hold other would be to invest municipalities with the 
right to frame their own charters and to utterly disregard 
special powers conferred upon them by the legislature. It 
seems to me that.the powers granted by the Home Rule 
Bill were not in substitution of the powers, rights and 
privileges existing in any municipality pursuant to 
any existing provision of law. Where charters are com- 
plete and contain all necessary powers to attain a given 
purpose, it is idle to invoke the aid of the act referred to.” 


Has the Municipal Empowering Act Enlarged the Scope of Local 
Action in Any Respect? 


But it may be asked whether, even if the Municipal Em- 
powering Act has not opened the way for the remaking of char- 
ters locally, there have not been fields relatively disentangled 
from existing statutory detail in which the scope of city powers 
has been enlarged and resort to special declaratory amendment 
made unnecessary. The answer is not easy. In so far as the 
act of 1913 has been one of the factors making for a more 
liberal construction of municipal powers,! it may have been at 
work even in situations in which it has not been mentioned, and 
it is impossible to measure its influence. Direct resort to it has 
been infrequent, if one may judge by the seemingly unchanged 
number of special city bills which have been introduced and 
passed in the sessions since 1913? and by the small number of 
adjudicated cases which have involved it. | 


*For a summary of conflicting current tendencies in the law of 
municipal corporations, see H. L. McBain, American Municipal Progress 
and the Law (1917), ch. II, “The Rule of Strict Construction,” con- 
cluding: “* * * it is open to question whether it may be said that the 
rule is gradually being broken down. It is a difficult task to weaken the 
force of a long-standing rule of law. From the cases that have been 
under review, nevertheless, it would seem that important inroads are being 
made upon the rigidity with which the rule of strict construction has been 
applied” (p. 57). 

7A study of the number of bills at Albany shows that although 
the number of special city bills introduced, passed and signed fell off in 
1914 and 1915, the decline was temporary; furthermore, in 1914, it was 
no greater proportionately than the falling off in -the legislative output 
on all subjects. 


92 STATUTORY SOURCES OF NEW YORK 


A few cases which have pointed toward enlarged power 
claim attention first. Mollnow wv. Rafter! and Matter of 
Christey? held, in different connections, that under the Municipal 
Empowering Act® cities might pay claims that admittedly they 
were not competent to settle under their existing charters. 

Other cases? which have expressly considered the Municipal 
Empowering Act as a factor in city power, and which have 
sustained the city’s action, decided little on the point in ques- 
tion, since they ended by holding that local authority was already 
forthcoming under existing law. 

Hellyer v. Prendergast is especially instructive because it 
illustrates that, in New York City at least, the charter already 
contains general grants of power and elastic clauses which can 
be stretched nearly, and perhaps quite as far as the provisions 
of the Municipal Empowering Act. The ordinance in dispute 
was attacked on the grounds that the charter gave the depart- 
ment of health full jurisdiction over its employees. In uphold- 
ing the ordinance, the court relied, not merely on the Municipal 
Empowering Act,> but on an elastic clause which caps the 
enumeration of powers of the Board of Aldermen in the char- 


* (1915) 89 Misc., 495, 152 N. Y. Supp., 110, involving the power of 
the city council of North Tonawanda to pay a judgment (with expenses) 
against a policeman who had been sued for using force in making an 
arrest. The power of the city to pay the judgment against the policeman 
was in this case denied, however, on the grounds that it would constitute 
a gift and as such would be contrary to Const. Art. 8, Sec. 10. 

*(1915) 92 Misc. 1, 155 N. Y. Supp., 39, involving the power of 
Buffalo to pay the expenses of the city auditor in a suit in which he suc- 
cessfully defended his right to keep the office. 

*The item in the Municipal Empowering Act in point was: “(every 
city is empowered)« ** \% "to pay or compromise claims equitably 
payable by the city, though not constituting obligations legally binding on 
it,” JL. 1913, ch. 247, sec. 20, subd. 5). 

*Hellyer v. Prendergast (1917), 176 App. Div., 383, 162 N. Y. Supp., 
788 (sustaining a New York City ordinance providing that only citizens 
and actual residents of the city should be appointed in the several depart- 
ments); City of Buffalo v. Till (1920), 192 App. Div., 99, 182 N. Y. 
Supp., 418 (sustaining an ordinance forbidding street speaking without 
mayor’s permit as valid anyway under charter); People ex rel. Economus 
v. Coakley (1920), 110 Misc., 385, 180 N. Y. Supp., 386 (sustaining Utica’s 
power to license pool halls as probably valid in any event under the Second 
Class Cities Law). 

°Sec. 20, subd. 17, “(every city is empowered): * * * To deter- 
mine and regulate the number, mode of selection, terms of employment, 
qualifications, powers and duties and compensation of all employees of the 
city and the relations of all officers and employees of the city to each 
other, to the city and to the inhabitants.” 


Point OWE R TO CHANGE THE SOURGES® 93 


ter, stating in part that the board shall “pass all such ordi- 
mances * * * as to the said Board of Aldermen may seem 
meet for the good rule and government of the City.”2 Any new 
broad grant was a matter of carrying coals to Newcastle. 

Against these affirmations or half way affirmations must be 
set several outright refusals to allow cities to draw new powers 
from the Municipal Empowering Act. Two of the cases rested 
upon the ground that the mooted ordinances involved general 
legislative power. In deciding that Yonkers could not penalize 
Sunday exhibitions by fine or imprisonment, it was said that 
“the additional powers granted by chapter 247 of the Laws 
of 1913 * * * did not, and could not, surrender the gen- 
eral power to legislate against criminal offenses, which remains 
in the Legislature. ’”2 

So, too, a New York City ordinance which sought to regu- 
late the selling and reselling of theatre tickets was invalid 
despite the City’s appeal to the broad grant with which the 
Municipal Empowering Act begins. Justice Greenbaum said :3 


“Tt was doubtless the intention of the Legislature by 
that section to overcome the effect of the former strict 
rule of construction which limited the powers of a 
municipal corporation to those expressly granted by ex- 
tending them to all matters with which it may deal under 
the general grant of power conferred by the charter, 
even if they may not have been specifically enumerated 
therein. But assuredly this liberal construction of the 
charter as to the powers of the city may not be held 


*L. 1901 ch. 466, sec. 44, as amended L. 1905, ch. 629, sec. 5. 

7People ex rel. Kieley v. Lent (1915), 166 App. Div., 550, 551, 152 
N. Y. Supp., 18, aff'd 215 N. Y., 626. The provision of the Municipai 
Empowering Act which was appealed to reads (sec. 20): “(* * * 
every city is empowered) * * * 22. To regulate by ordinance any 
matter within the powers of the city, and to provide for the enforcement 
of ordinances by legal proceedings, to compel compliance therewith, and 
by penalties, forfeitures and imprisonment to punish violations thereof.” 

* Matter of Gilchrist (also by same opinion In re Newman) (1920), 
181 N. Y. Supp., 245. 246, 110 Misc., 362. The ordinance in question, 
approved December 13, 1918, as sec. lla of ch. 3, Art. I of Code of 
Ordinances, not only required a license fee of $250.00 to sell tickets, but 
specifically stated that the resale price should not be more than fifty cents 
over the regular rate as printed on the ticket. 


94 STATUTORY: SUURCES OPINE Ven Ormi 


to confer general legislative power upon the municipality. 
The business of selling tickets is not a matter which would 
fall within the scope of any duty or power implied in 
the charter 


Another case! brushed aside the Municipal Empowering Act, 
as it did the royal grants, as a source of local power to compel 
the relocation of street railway tracks in New York City, 
although it admitted that the legislature might extend its police 
power to the matter and although the legislature did deal with 
the situation by a very specific charter amendment in the next 
year. 

Two recent cases have given a narrow construction to the 
term “municipal affairs” as employed in the Municipal Em- 
powering Act. Could the City of New York operate motor-bus 
lines? When the question was presented in Brooklyn City R. 
Co. v. Whalen,? the City’s representatives pointed both to the 
Municipal Empowering Act and to the existence of an emer- 
gency. Justice Blackmar denied authority, saying in part: 


“It would be futile to attempt a definition of what con- 
stitutes ‘local affairs’ within the meaning of the act. 
But one thing, I think, may be safely said, and that is 


1 People ex rel. City of N. Y. v. N. Y. R. Co. (1916), 217 N. Y., 310, 
313; Cardozo and Seabury, JJ, dissenting on the ground that the existing 
local control over streets carried with it a grant of police power. The 
majority opinion did not draw the line between the charter and the 
Municipal Empowering Act as possible sources of authority in the 
matter. The charter amendment which corrected the situation was L. 1917, 
ch. 692, adding sec. 242c. For a discussion of the bearing of the case on 
present-day efficacy of the royal grants, cf. supra, p. 58. 

7 (1920) 182 N. Y. Supp., 283, 285, 191 App. Div. 737 (aff’g 181 N. Y. 
Supp., 208, 111 Misc., 348), and aff’d by memo. only, 229 N. Y. 570. The 
law department of New York City, on January 9, 1920, 56 Op. of the 
Corp. Counsel 34, had advised that the Municipal Empowering Act was 
in itself ample basis for the municipal operation of motor bus lines. 
Another opinion that had declared power to act was that of May 24, 
1920, vol. 56, p. 537, involving the taking over of a discontinued ferry 
between 92d street and Astoria. So, too, an opinion of December 3, 1918, 
vol. 53, p. 655, approving, inter alia, a proposed ordinance involving the 
licensing of rapid transit employees. The latter virtually over-ruled an 
earlier opinion, September 30, 1916, vol. 49, p. 315, on a related point. 
But, on the other side, see the opinion of April 8, 1919, vol. 54, p. 436, 
advising that power to pass an ordinance that proposed a municipal milk 
distributing plant did not exist under the Municipal Empowering Act. 


LOCAL POWER TO CHANGE THE SOURCES 95 


that the power to control ‘local affairs’ does not add 
new powers to the corporation. The act refers to local 
affairs which were such at the time the act was passed 
in 1913. Certainly municipal operation of bus and stage 
lines was not a local affair at that time.” 


People v. Dibble! was the more striking in the narrow con- 
struction which it gave to the Municipal Empowering Act, for, 
in denying that Schenectady could establish a scheme of group 
insurance for its employees, it contracted the operation of the 
act in one of the peculiarly proprietary phases of government. 
“This insurance,” said the Court, “has no relation to the public 
health, public morals, or the public safety, nor any of the other 
objects which come within the scope of the city’s power. Atten- 
tion is called to the granting of pensions to city employees, but 
it will be noted that in such cases the action of the city authori- 
ties is provided for by legislative enactment.” 

Both of these decisions were marked by what one of the 
most acute students of constitutional law is fond of calling “the 
parade of the horribles.” In Brooklyn City R. Co. v. Whalen, 
it was said: 


“We cannot close our eyes to the far-reaching nature 
of the argument of the Corporation Counsel. If the Home 
Rule Act authorizes municipal operation of common car- 
rier lines, it is difficult to see any limit to its scope. The 
city could do whatever its existing officers thought for the 
general welfare. The line of argument that the Home 
Rule Act empowers the City to operate stage lines of 
motor vehicles in order to promote the welfare of citizens 
would with equal force apply to establishing municipal 
markets, municipal department stores, municipal drug 
stores, or any other enterprises which the officials in power 
conceived would be in the interest of public welfare. No 
such meaning can be given to the act. It must be inter- 


* People ex rel. Terbush & Powell v. Dibble (1921), 189 N. Y. Supp., 29, 
31, aff'd by memo. only, 196 App. Div., 913, 186 N. Y. Supp., 951, aff’d 
by memo. only 231 N. Y., 593 (the Court of Appeals holding, it should be 
added, that the record was inadequate to decide the main question). 


96 STATUTORY SOURCES OF NEW YORK 


preted consistently with the fundamental principle that the 
powers of corporations, both municipal and private, are 
such only as are granted expressly or by necessary impli- 
cation in the laws which constitute the charter. From this 
use of words of indefinite import, like ‘ general welfare,’ 
defined to include ‘ the promotion of education, art, beauty, 
charity, amusement, recreation, health, safety, comfort, 
and convenience’ (sec. 21, Home Rule Act), no implica- 
tion can be drawn of a grant of power to cities in the 
state to assume those activities which according to our 
conception of government founded on the principle of 
individualism, are left to private enterprise.” 


The Court did not suggest that the deepest pit of hell at least 
might be fenced about by resort to the crude, indefinite, chang- 
ing, but practical distinction which the law has already drawn 
between ordinary business and enterprises which are affected 
with a public interest. Nor has the grim parade been limited 
to the area shadowed by the Municipal Building of the 
Greater City. “If this system of insurance is upheld,” said 
another court in People v. Dibble, “there is no reason why the 
City may not hire the houses for its employees, provide for their 
clothing, while in the employment of the city, or make any other 
provisions for them, and that entirely outside of anything directly 
connected with their employment or their duties.” The Court 
did not advert to frequent use of group insurance in private 
industry ; it becomes socialistic for government to use a current 
device of employment management and to do for its employees 
what competitive enterprise does as a matter of successful busi- 
ness. 

Such has been the outcome of the attempt to relieve the 
legislature and to liberate the cities by thrusting a broad grant 
of power beneath the fabric of existing charters. It has not 
given cities the right to alter matters expressly governed by 
statute. It has not become (and here has been its primary failure 
frorh the standpoint of its authors) a source of substantially 
enlarged power. Under these circumstances, it could contribute 
little to New York City, already more richly empowered than 


LOCAL POWER TO CHANGE THE SOURCES 9/7 


the run of cities, although under a charter and other special 
laws of indescribably detailed content. 


II. 


Conditional Repeal and the Replacement of Charter Provisions 
by Ordinance. 


Attention may now be turned from the wholesale method of 
relief treated in the preceding section to a device which, on a 
limited scale, has been applied in the revision of the New York 
City charter. This device consists in the repeal of certain pro- 
visions of the charter or of other special laws conditionally upon 
the later enactment of local ordinances that cover their subject 
matter. The instances of its actual application to New York 
City have been: (1) to the laws relating to building regulation, 
under the charter of 1897; (2) to forty-six sections of the 
charter, involving miscellaneous matters, under the Amendatory 
Act of 1901; (3) to the fixing of salaries irrespective of existing 
law (construed to mean laws enacted prior to 1902), under both 
the original Greater New York Charter and the revised charter 
of 1901. The analysis of these uses of conditional repeal will 
lead, in the concluding section of the present chapter, to the 
consideration of the proposal that the local authorities should 
be empowered to change departmental organization and in this 
connection to set aside the provisions of existing statutory law. 


The Greater City Charter and the Building Code. 


Why did the Greater New York Commission adopt an 
unusual procedure in regard to the laws affecting building con- 
trol and why, with this procedure before them, did they not 
carry it into other phases of city government? The answer is 
suggested in the Commission’s own words :4 


*Report of the Greater New York Commission to the Legislature, 
Feb. 18, 1897, as reproduced in Birdseye, The Greater New York Charter, 
annotated (1897), p. xxxii. 


98 STATUTORY SOURCES OF NEWYORK 


“To have adopted for such a city what may be de- 
scribed as a skeleton charter, would have been to have 
left to the local legislature the framing of ordinances 
that should be the fundamental law for all the vast inter- 
ests thus to be consolidated into a single government. In 
connection with the building department, the commission 
has done this, partly because it was clearly impossible to 
extend the building laws of the present City of New York 
over territory presenting such widely different conditions, 
and partly because the commission were unwilling to ven- 
ture upon original legislation as to a subject at once so 
intricate, so technical, and yet so important. Moreover, 
few subjects afford, it is believed, a more appropriate 
field for local regulation. The charter, therefore, provides 
that the existing building laws shall stand in all parts of 
the consolidated territory until superseded by a municipal 
building code, and the municipal assembly is given author- 
ity to employ experts in the preparation of such a code.” 


The plan was embodied in sec. 647, which without attempt- 
ing even to list, let alone to assemble and reproduce the legisla- 
tion in question, declared that the various acts then in effect 
“concerning, affecting, or relating to the construction, altera- 
tion or removal of buildings or other structures in any of the 
municipal and public corporations included within the City of 
New York as constituted by this act” should continue in full 
force. It authorized the municipal assembly “to establish and 
from time to time to amend a code of ordinances, to be known 
as the ‘building code,’” providing for all the matters already 
described, and it stipulated that “ upon the establishment of such 
code the several acts first above mentioned shall cease to have 
any force or effect, and are hereby repealed * * ¥*.” 

In accordance with this mandate, a body of ordinances was 
enacted and approved on October 24, 1899, and took effect on 
December 23 of the same year. “This ordinance,” its opening 
lines declared, “to be known and cited as the Building 
Code and presumptively (to) contain the building law, 


LOCAL POWER TO CHANGE THE SOURCES 99 


except so far as such provisions are contained in the charter 
* * * 1 Under a charter amendment of 1904, it became 
a chapter in the general code of ordinances. The story of the 
efforts to revise it—finally completed in 1916, after a decade 
of costly failure’—does not concern the present point except 
In so far as it indicates the complicated and controversial sub- 
ject-matter of which the device under discussion had largely 
rid the charter. 


The Validity of Conditional Repeal Assumed by the Courts. 


In turning to the construction which this instance of condi- 
tional repeal has received in the courts, it must at once be pointed 
out that the revision of the charter in 19014 very nearly removed 
whatever legal difficulties may have inhered in the original pro- 
visions. The Building Code as it stood on the first day of 1902 
was expressly confirmed and it and provisions of law fixing 
penalties under it and “all then existing law affecting or 
relating to the construction, alteration or removal of buildings 
or other structures’ were continued in full force. In practice, 
this would have stilled doubts, had they existed, because the 
transmutation of law into ordinance was largely accomplished. 
In theory at least, however, the charter of 1901 authorized the 
process to continue; it did this, furthermore, in language of 
which—if it were not a probable inadvertence—something could 


Sec. 1 of Pt. I, A, as given in Ash, The Building Code of the City 
of New York, with notes (1899), p. 1. 

*L. 1904, ch. 628, sec. 2. Under the revision of the code of ordinances 
which was approved September 12, 1916, it constitutes ch. 5 and comprises 
32 articles and several hundred sections. 

* Report of the Building Bureau of Manhattan, 1916, p. 15. The con- 
nection of a veteran civil servant, Rudolph P. Miller, as engineer of the 
Board of Aldermen’s Committee, with the eventual success is well known. 
The final plan was to put the revision through the Board of Aldermen 
article by article. Mr. McAneny spoke in 1915 of “something like three 
hundred thousand dollars futilely spent upon it” in the previous, abortive 
revisions during a decade. Proceedings of the Academy of Political 
Science, April, 1915, vol. V, No. 3, p. 224. Other estimates put the total 
cost as high as half a million dollars. 

*L. 1901, ch. 466, sec. 407. 


100 STATUTORY SOURGCESION NEW iy One 


be made in arguments supporting the competence of the legisla- 
ture to delegate charter amending power. “The Board of 
Aldermen,” it was said, “shall have power from time to time 
to amend said building code and said laws and to provide 
therein for all matters concerning, affecting or relating to the con- 
struction, alteration or removal of buildings or structures * * *,”! 

The cases in which the courts have construed the sanctions 
of the Building Code do not seem to date back of 1903. The 
question of the legality of the process whereby the code first 
replaced an existing body of law has not been directly presented ; 
its validity has been assumed, rather than argued, and it has 
been easy to beg the question by pointing to the confirmation 
written into the charter of 1901. The leading case, City of 
New York v. Trustees of Sailors’ Snug Harbor,? centered on 
the question whether the power to require the construction of 
fire escapes on factory buildings lodged with the borough super- 
intendent of buildings or the state labor department. Before 
1897, it was pointed out, the more general terms of the State 
Labor Law had been ousted in the area of New York City by 
special laws on the subject of building control. Had the situa- 
tion in this respect been altered by the replacement of these laws 
by the Building Code ordinance, especially in view of the charter 
proviso that “the provisions of such ‘ building code’ shall be 
in conformity with and be subject to all general laws of the 
estate (sic) concerning, affecting, or relating to buildings, or 
classes of buildings, or other structures?’ In deciding that 
the situation had not been altered and that the labor law did 
not operate, Justice O’Brien touched on the validity of the 
method by which the Building Code had been adopted. With- 
out in any way implying doubt as to the soundness of that 
method, he cut the knot by saying: “In view of this ratification 
by the Legislature of the power to enact the Building Code, we 


“Ibid. Italics are the author’s. It need not be pointed out that the 
original provision in 1897 did not in any legal sense give the Board of 
Aldermen power to amend state laws regarding building; the Board did 
nothing to the laws; the Legislature itself repealed them contingently. 

* (1903) 85 App. Div. 355, 361, 83 N. Y. Supp. 442, aff'd. (1905) 180 
Ne Yaa 

NE 1897, ch. 378, sec 647. This provision is not repeated in the 1901 
charter. 


LOCAL POWER TO CHANGE THE SOURCES 101 


fail to see why the Building Code should not be given the same 
force within the corporate limits as the statute passed by the 
Legislature itself.” Later cases,! citing this, have indulged in 
even less argument. 

Nevertheless, in so holding, the courts have never suggested 
that the Building Code has occupied a different status from 
that of ordinances generally. “ But, although given the force 
of law,” it was said by Justice Scott in declining, on a technically 
procedural ground, to apply it to the situation at hand, “the 
Building Code remains nothing more than an ordinance of 
which the court cannot take judicial notice, and which to be 
availed of must be pleaded and proved.’ 


An Element of Uncertainty Created. 


Although doubt was never cast on the validity of the scheme 
of conditional repeal, an uncertainty existed. What were “all 
matters concerning, affecting, or relating to the construction, 
alteration, or removal of buildings or other structures”? How 
far, under this clause, could the local legislative body extend 
the boundaries of the field in which it was empowered to com- 
plete the conditional repeal of state law by the enactment of 
ordinances? The problems which were implicit in the phrase- 
ology were anticipated by an early annotator of the code, 
writing before there had been opportunity for adjudication of 
any kind :3 


* Messer Co. v. Rothstein (1908) 129 App. Div., 215, 113 N. Y. Supp. 772, 
aff'd, 198 N. Y. 532; Post v. Kerwin (1909) 133 App. Div. 404, 117 N. Y. 
Supp. 761; Racine wv. Morris (1910) 201 N. Y. 240, aff’g. 136 App. Div. 
467, 121 N. Y. Supp. 146; City of New York, v. Foster (1911) 148 App. 
Bie, toa upp. L52o) aff'd’ 205) Nes ¥ 1593 People (ex reiaVan 
Beuren & New York Bill Posting Co. v. Miller (1914) 161 App. Div. 138, 
146 N. Y. Supp. 403. 

*Schnaier & Co. uv. Grigsby (1909) 132 App. Div. 854, 856, 117 N. Y. 
Supp. 455, aff’d. 199 N. Y. 577; see also Goetz v. Duffy (1916) 171 App. Div. 
680, 157 N. Y. Supp. 590, 591, remarking on the same point, “It is a mere 
code of ordinances.” These cases were decided before L. 1917, ch. 382, 
amended sec. 1556 of the charter by adding, “ All courts in the city shall 
take judicial notice of city ordinances.” 

*Ash, The Building Code of the City of New York, with notes, (1899), 
pp. iii-iv. 


102 STATUTORY SOURCES OF NEW YORK 


“The construction placed upon this section by the 
municipal assembly in enacting the code, deserves special 
mention. The code embraces provisions (secs. 150-156) 
referring to violations of the sections regulating the con- 
struction, alteration or removal of buildings, inflicting 
penalties for such violations, and regulating the legal pro- 
cedure to prevent these violations by suit, injunction, etc. 
These provisions have been taken bodily from the build- 
ing law contained in the N. Y. C. Consolidation Act 
(L. 1882, ch. 410), secs. 505-14, as amended by L. 1892, 
ch, 275, and with slight changes due to the altered situa- 
tion consequent upon consolidation incorporated in the 
code. It may be a serious question whether the section of 
the charter above quoted conferred any legal authority 
upon the municipal assembly to enact an ordinance cover- 
ing the subject matter of the sections of the Consolidation 
Act last referred to.” 


The justification of these doubts was partially given some 
years later in City of New York v. Wineburg Advertising Com- 
pany. It was here held that, despite the attempt to include its 
subject matter in the Building Code, sec. 506 of the Consolida- 
tion Act must be regarded as still in force? The Court sus- 
tained the contention that an action in equity might be brought 
to prevent the erection of a sky-sign, on the ground that, 
although injunction ordinarily will not lie to enforce ordinances, 


* (1907) 122 App. Div. 748, 107 N. Y. Supp. 478. The Kobbe Co. wv. 
City of New York, ibid, p. 489, involved the same matter and was decided 
briefly on the basis of the opinion in the Wineburg case. 

* This decision blocks whatever argument might be drawn from an 
earlier case, Kenney v. Brooklyn Bridge Stores Co. (1904) 121 App. Div. 
684. This was a suit to recover damages for a death resulting from a fall 
through an open hatchway. It was alleged that L. 1892, ch. 275, amending 
the Consolidation Act of 1882, had been violated by the owner. The 
Court held that, even if it were in force, the law of 1892 would not apply 
because it had been intended to protect firemen. It added (in what was 
dictum since the Building Code had not been argued and proved in court): 
“Tt would seem, therefore, that under the express provisions of the char- 
ter of 1897, upon the enactment of that building code by the municipal 
authorities the provisions of the Consolidation Act in relation to the con- 
struction of buildings in the City of New York were repealed, and the 
liability of the defendant, if any, must depend upon the building code in 
force on Aug. 13, 1903, the date of the accident.” (p. 688). 


LOCAL POWER TO CHANGE THE SOURCES, 3103 


this remedy had been provided by L. 1892, ch. 275, amending 
sec. 506 of the Consolidation Act. Justice Scott said in part: 


~™* * * when the Legislature provided that the 
building laws formerly in force should be repealed upon 
the adoption of a Building Code, it meant that those 
provisions of the Building Code which it was within the 
power of the municipal assembly to adopt, should super- 
sede and stand in the place of legislative acts covering 
the same field. If, therefore, the municipal assembly had 
no power to enact sec. 151 of the Building Code, pur- 
porting to provide a remedy by injunction, the section 
must be treated as if it had not been included in the 
Code at all, and consequently sec. 42 of ch. 275 of the 
Laws of 1892, embracing a subject not within the author- 
ity of the municipal assembly and, therefore, not validly 
treated by the Building Code, remained unrepealed.” 


Conclusion Regarding Conditional Repeal Under the Charter of 
1897, 


Here was demonstrated the fact that the enactment of the 
Building Code did not, ipso facto, repeal every special law that 
related in any way to building or even every law the substance 
of which it sought to include. Here was suggested an obvious 
automatic relationship, whereby effect is given either to a pro- 
vision of law or to an ordinance that seeks to cover the subject 
matter of the provision of law. But neither here nor in an 
almost simultaneous case! that closely followed it did the court 
undertake to give a definition of the scope of the concept of 
building regulation or to locate the boundary beyond which 
ordinances could not go in supplanting pre-existing statutes. 

The practical difficulties in the particular situation which has 
just been discussed were perhaps not serious; they were less 
important even than they might have been if the ordinance, 
instead of merely copying, had departed from the substance of 
the statute that it sought to replace. It would be exaggeration, 


*In the Matter of the City of New York (O. J. Gude Co., App.) (1907) 
122 App. Div. 741, 107 N. Y. Supp. 484. 


104 STATUTORY, SOURCES OF NEW YORE 


furthermore, to suggest, in thus directing attention to an element 
of uncertainty in the operation of the scheme of conditional 
repeal as applied to building laws, that it has at any time proved 
disturbing. It is obvious, however, that this element must be 
reckoned with, and must be guarded against in any use of the 
scheme of conditional repeal upon a wider scale. 


Conditional Repeal of Designated Charter Sections, 1901. 


The Amendatory Act of 19011 listed forty-six sections of 
the Greater New York Charter and, without itself attempting 
to reprint them, declared that they should continue in full force 
until the Board of Aldermen should “ pass ordinances regulating 
the matters provided for in the said several sections.” The 
proviso concluded: “* * * all of which ordinances the said 
Board of Aldermen is hereby expressly empowered to pass. 
Upon the passing of any such ordinances regulating the matters 
provided for in any one of the said sections respectively, such 
section shall cease to have any force or effect, and the same is 
and shall be repealed.” 

This provision represented no careful planning. The Char- 
ter Revision Commission did not deem it significant enough to 
mention in their report. Nor is any consistent criterion of selec- 
tion evident in the subject matter of the various sections which 
were chosen from the mass of the charter for conditional repeal. 
The content of these sections was miscellaneous. (a) Three? 
concerned licensing in connection with boarding houses, immi- 
grant booking agents, and hotel runners; (b) nine involved fire 
control, of which one? regulated the disposal of shavings, etc., 
one* required the maintenance of lights, apparatus, etc., in build- 


*L, 1901, ch. 466, Section Three (the whole body of the charter, with 
its numerous “sections,” being Section One). This refers to the Second 
Schedule, appended to the act and bearing the not quite accurate subtitle, 
“Sections to Remain in Force Until Changed by the Board of Aldermen.” 

*L. 1897, ch. 378, secs. 347, 348, 349. 

* Sec. 760. 

“Sec. 762. 


LOCAL POWER TO CHANGE THE SOURCES 105 


ings used by many persons, one! required numbering of exits 
and the printing of floor plans on programs in places of amuse- 
ment, and the remaining six? regulated explosives and com- 
bustibles and other aspects of fire prevention; (c) nine concerned 
the protection of health and the avoidance of nuisances, six 
enumerated certain noxious products, one? relating to the 
filling of yards and cellars, one® to garbage receptacies, and 
one® to the driving and slaughtering of animals; (d) nine 
touched the control of streets, of which four? were very old 
provisions regarding the breaking of street lamps and knockers, 
one’ stated a law of the road, one? forbade throwing certain 
kinds of debris in the streets, one!° placed restrictions on parades, 
etc., and one!! gave a definition of “streets,” one 12 conferred 
power to regulate driving, etc., (e) sixteen’? concerned the 
licensing of amusements. 

Most of these on their face were necessary but transitory 
details rather than the essence of power. They were not, how- 
ever, a whit more detailed and temporary than hundreds of 
sections which the Commission left untouched in the charter. 
The inconsistency is the more apparent when it is noted that. 
one of the sections chosen for conditional repeal!4 broadly stated 
that “the municipal assembly is hereby authorized and em- 
powered to pass ordinances regulating the rate of speed * * * 
by foot passengers, vehicles and animals’; and that another 
section!® in forbidding the driving and slaughtering of cattle, 
sheep, swine, pigs or calves, permitted wide variations by adding 
the clause, “except at such times and in such manner as pro- 


*Sec. 1487. 

7 Secs. 763, 765, 768, 769, 770, 773. 

pecs les a 1205.1, 209 21 he 1212.2 1213: 

“Sec. 1214. 

RT VEAP 

*Sec. 1227. 

™Secs. 1462, 1463, 1464, 1465. 

* Sec. 1455. 

*Sec. 1456. 

Sec. 1457. 

™ Sec. 1466. 

* Sec. 1454. 

** Secs. 1472-1486, incl., 346. 

* Sec. 1454; this section, it is fair to add, contained a definite state- 
ment of penalties. 

™ Sec. 1227 


106 STATUTORY SOURCES OF NEW YORK 


vided in the sanitary code”; and that the section! which con- 
cerned precautions against fire in places of amusement, although 
more detailed, left discretion with the fire commissioner at 
nearly every point. The charter abounds in sections which do 
not have as much saving flexibility as these. 


The Validity of Conditional Repeal Again Assumed by the 
Courts. 


The validity of conditional repeal under the 1901 charter 
was as little questioned on the main point as had been the 
Building Code. In re City of New York (Morris’ License)? 
mentioned the point only to go on to an obvious interpretation 
of the effect. The Court said: 


“ The Legislature, while it might confer power upon the 
Board of Aldermen to pass ordinances upon the subjects 
enumerated in said title, could not confer power upon the 
Board of Aldermen to amend, add to, or change the 
charter. While the charter provided for a continuation of 
the said provisions until the Board of Aldermen acted, 
it was expressly provided that: ‘upon the passing of any 
such ordinance regulating the matters provided for in any 


* Sec. 762. 

7 (1909) 131 App. Div. 767, 772, 116 N. Y. Supp. 353, involving an ordi- 
nance approved Dec. 19, 1907, entitled ‘“ An ordinance regulating the matters 
provided for in section 1481 of L. 1897, ch. 378.” Sec. 1481 had been part 
of Title 2 of Ch. XXII. The penalty provision referred to was Sec. 1486 
(also! conditionally repealed) which related to “a violation of any of the 
provisions of this title.” Some years before, in an opinion rendered on 
March 7, 1902, the law department of New York City had advised that 
certain legislative amendments to secs. 763 and 769, recommended by the 
Municipal Explosives Commission, were unnecessary, since they could 
be adopted in the form of ordinances. 12 Opinions of the Corporation 
Counsel of the City of New York, 488. Subsequent opinions dealt with 
several of the sections listed in Schedule Two, although none dealt in- 
cisively with the problems inherent in the application of conditional repeal: 
sec. 349, May 1, 1915, vol. 46, p. 310, Nov. 12, 1918, vol. 53, p. 586; sec. 
762, June 10, 1915, vol. 46, p. 415, June 24, 1915, vol. 46, p. 470; sec. 763, 
May 6, 1907, vol. 23, p. 558; sec. 773, April 8, 1915, vol. 46, p. 253; secs. 
1472-3, Aug. 23, 1904, vol. 19, p. 38, Nov. 27, 1911, vol. 36, p. 350; secs. 
1472 and 1487, Nov. 8, 1915, vol. 47, p. 305; secs. 1473-4, March 6, 1903, 
vol. 15, p. 327; sec. 1481, April 10, 1907, vol. 23, p. 487. 


LOCAL POWER TO CHANGE THE SOURCES 107 


one of said sections respectively such section shall cease 
to have any force and effect and the same is and shall 
be repealed.’ It follows that section 1481 has been re- 
pealed by the passage of the ordinance, but that ordinance 
has not been inserted in place of section 1481 in the title 
from whence it was taken.” 


On the basis of this reasoning, it may be added, the Court 
held that a penalty provision applicable to the whole of the 
original title and not yet displaced from the charter could not 
be construed as extending to the ordinance. But although the 
direct connection is broken, the fact that an ordinance displaces 
a section of the charter may be useful in interpreting the former. 
- In City of New York v. Alhambra Theatre Co.,! involving the 
same ordinance and charter section already discussed, it was 
held that the ordinance was valid despite the presence of a 
provision on the same subject in the penal law, because the 
legislature must have been aware of the penal law when it re- 
enacted section 1481 into the Greater City Charter and, the 
Court concluded, ‘“ The ordinance which has replaced sec. 1481 
gives it the same right.” The legality of conditional repeal was 
not questioned. 


But Serious Uncertainties Again Created. 


But, although clearly sustained in its essential principle, the 
use of conditional repeal in 1901, as in 1897, left serious uncer- 
tainties. Some differences may be noted. The charter of 1901 
designated particular sections for conditional repeal, whereas 
the building code proviso of 1897 repealed, without specific 
designation, all laws on a broad subject. On the other hand, 
in dealing with section numbers rather than substance, the charter 
of 1901 set up no single topic of legislation to serve as a guide 
in determining the limits of repeal. The phraseology, it will be 
recalled, read: “ Upon the passing of any such ordinances regu- 
lating the matters provided for in any one of the said sections 


* (1910) 136 App. Div. 509, 121 N. Y. Supp. 3. 


108 STATUTORY SOURCES OF NEW YORK 


respectively, such section shall cease to have any force or effect.” 
It requires no straining to draw from this at least the following 
problems : 

(1) Is it necessary that the ordinance shall expressly declare 
itself to be in regulation of the matters provided for in a par- 
ticular section, or does the completion of repeal take place 
automatically whenever an ordinance is enacted which touches 
upon the subject-matter of one or more of the conditionally 
repealed sections ? 

(2) If so, does the repeal of the whole of any section take 
place only when substantially all its subject-matter is regulated 
by ordinance, or is the whole repealed when a part merely is 
covered, and, in either case, how is the line drawn in determining 
how apposite the ordinance must be to the subject-matter, and 
how much of that subject-matter it must cover, in order to com- 
plete the repeal of a charter section? 

(3) Or, despite the fact that the charter seems to speak 
only of the repeal of whole sections, can a part of a section 
remain in the charter while the part that is covered by an ordi- 
nance is repealed? 

(4) Is it material to the effect of the ordinance in con- 
summating repeal, whether it is consistent with, or repugnant to, 
the charter section in question? Is repeal to be regarded as 
effected if the ordinance merely repeats the exact language of 
the charter provision? if it repeats the substance, but in different 
words? if it repeats the substance but with minor alterations of 
meaning ? 

(5) If a section which was listed in 1901 as conditionally 
repealed subject to ordinance is amended subsequently by the 
Legislature, before any ordinance in regulation of its subject 
matter has been adopted and without any mention of conditional 
repeal in the amending statute, is the amended section still con- 
ditionally repealed subject to ordinance? 

It must be said frankly that most of these questions have 


*For example, the ordinance involved in In re City of New York, 
supra, p. 106, note two. 


LGVALD POWER TO CHANGE THE SOURCES (109 


never been settled in the courts; few aspects of the matter, 
indeed, have been adjudicated. Some assistance, at least in 
delimiting the problem, was given in Waldo v. Christman.} 
The issue in this case was whether the repeal of sec. 762 of 
the charter had been completed by the enactment of certain pro- 
visions in the Building Code, in point here only as an ordinary 
ordinance. The Court held that the charter section was not 
repealed, and suggested a test in the phrase, “ comprehensive 
ordinance.” 


The opinion may be quoted at some length: 


“It is true that sec. 762 of the charter is included in 
the Second Schedule referred to in subd. 3 of sec. 1620° 
of ch. 466 of L. of 1901. From this circumstance the 
argument is made that the enactment by the local authori- 
ties of secs. 102 and 109 of the building code superseded 
sec. 762 of the charter. While a superficial reading of 
sec. 1620 makes this contention seem plausible, yet we 
think that upon a closer examination it becomes evident 
that the legislature did not intend that sec. 762 should 
be deemed repealed until the local authorities ‘shall pass 
ordinances regulating the matters provided for in the 
said’ section, or ‘until’ said section should be ‘ changed 
by the Board of Aldermen.’ A comparison of secs. 102 
and 109 of the building code with the provisions of sec 
762 of the charter shows very clearly that these ordinances 
are not co-extensive with the provisions of the charter 
referred to. Thus the provisions of sec. 102 of the build- 
ing code relate to fire appliances in buildings of a certain 
specified height, and are generally much more limited in 
their scope than are the provisions of sec. 762 of the 


* (1911) 72 Misc. 349, 353-5, 130 N. Y. Supp. 260 (also, by the same 
opinion, Waldo v. Winter & Co.). 

7 The Court (erroneously, but not strangely in view of the double use 
of the term “section” in the charter of 1901) refers to “Section Three ” 
as a subdivision of the last regularly numbered section of the charter, t.c., 


1620. 


110 STATUTORY SOURCES OF NEW YORK 


charter 0 * = *0~*, Sec. 6/762 on the Coharter wee sti 
force, and in so far as it relates to the facts of these 
cases has not been superseded by the building code. The 
provisions of secs. 102 and 109 of the Building Code are 
not inconsistent with sec. 762 of the charter. We think 
that the design of the Board of Aldermen in enacting 
these sections was to make certain specific provisions 
which should supplement the provisions of the charter 
and not to pass a comprehensive ordinance which should 
regulate ‘the matters provided for’ in sec. 762 of the 
charter, or to ‘change’ the regulations prescribed by 
the charter provisions. In view of the language em- 
ployed in sec. 1620 we think that it is evident that the 
Legislature did not intend that the section of the charter 
referred to in the ‘Second Schedule’ should be repealed 
until comprehensive ordinances, which should substan- 
tially provide for the proper regulation of the same sub- 
ject-matter, should be enacted by the local authorities of 
the City of New York.” 


Although this is the statement of an intermediate court only, 
it may be taken to show conclusively that the mere trenching 
of ordinance upon the subject-matter of a section listed for 
conditional repeal is not enough to accomplish repeal. But at 
what point does an ordinance: become “comprehensive”? At 
what point does it “substantially provide for the proper regula- 
tion of the same subject-matter”? The solution offered is as 
reasonable in its general theory as it is likely to be uncertain 
in its detailed application. Yet a more exact rule could hardly 
have been offered unless the courts had chosen, against the nor- 
mal tendencies of statutory construction, to recognize repeal only 
where an ordinance expressly offered itself as a regulation of 
the matters treated in a particular section. 


* Citing with approval Lantry v. Hoffman (1907) 55 Misc. 261, aff’d 
124 App. Div. 937, which, without raising definitely the question of the 
repeal of sec. 762, had he!d that under provision of that section authoriz- 
ing the fire commissioner to require fire extinguishing equipment in build- 
ings, he could require the installation of perforated pipes, despite the 
fact that the building code made a similar provision for buildings of a 
certain character, enforceable by another department. 


LOCAL POWER TO CHANGE THE SOURCES I11 


The Uncertain Status of the Charter Sections in Question. 


A consequence is that it is almost impossible to say which 
of the forty-six sections originally listed for conditional repeal 
are to be regarded as still in force. The various editions of the 
charter, including an annotation which has an almost official 
standing, are hopelessly in disagreement and are all demon- 
' strably inaccurate on this point. 


Conclusion Regarding Conditional Repeal Under the Amendatory 
7 Act of 1901. . 


Some will say, perhaps, that the very absence of adjudica- 
tion shows that the practical consequences have not been embar- 
rassing. They may urge, as a mitigating factor, that, if an 
ordinance is seriously repugnant to any of the sections which 
have been conditionally repealed, the intention of the ordinance 
to complete the repeal will be obvious, and that, if the ordinance 
is not repugnant in this degree, it does not matter whether both 
are or are not in effect. Yet situations can readily be imagined 
and, indeed, situations have been mentioned in other connections 
in preceding pages, in which it matters greatly whether both of 
two entirely consistent provisions, differing in antecedents and 
ramifications, are regarded as in force. The argument, further- 
more, takes no account of possible repugnancy between an ordi- 
nance and a part only of one of the charter sections. Even if 
these difficulties could be waved aside, however, the disadvan- 
tages of any uncertainty in the legal sources of the city govern- 
ment could not be lightly dismissed. Here again, as in the 
treatment of building laws under the first Greater New York 
Charter, the operation of conditional repeal has disclosed ambigu- 
ities and dubious effects against which, if the scheme were 
employed on a larger scale, it would be necessary to take careful 


guard. 


Conditional Repeal in the Grant of Power to Change Salaries. 


A further use of conditional repeal, begun in the Greater 
City Charter of 1897 and carried further in the Amendatory 
Act of 1901, concerned the vital matter of salaries. The 


112 STATUTORY SOURCES OF NEW YORK 


application was less express than in the two instances already 
noted, but it was equally a case of the repeal of provisions of 
existing statutes subject to the passage of ordinances. 


The Evolution of the Provision. 


The introduction! of this feature of flexibility in the charter 
of 1897 may be examined in order to facilitate an explanation 
of the slightly different provisions of 1901. The Greater New 
York Charter, like its predecessors, left the lion’s share of the 
salary-fixing power with the heads of departments rather than 
with the local legislative body.” Section 56, however, stated: 


“The salaries of all officers whose offices may be 
created by the municipal assembly for the purpose of 
giving effect to the provisions of this act, shall, subject to 
the other provisions of this act, be prescribed by ordinance 
or resolution. The municipal assembly shall have power, 


*The charter of 1873, L. 1873, ch. 335, sec. 28 (continued as sec. 48 
in the Consolidation Act of 1882) introduced the element of conditional 
repeal very slightly in conferring salary-fixing power on the heads of 
departments, stating (italics the author’s): ‘“‘The number and duties of 
all officers and clerks, employees, and subordinates in every department, 
except as otherwise herein specifically provided, with their respective 
salaries, whether now fixed by special law or otherwise, shall be such as 
the heads of the respective departments shall designate and approve, but 
subject, also, to the revision of the Board of Estimate and Apportion- 
ment.” It must be noted that the conditional repeal implied in the ital- 
icized phrase applied, by reason of a foregoing qualification, only to provi- 
sions of special acts omitted from the charter of 1873 and, later, from the 
Consolidation Act of 1882. The Consolidation Act fixed many salaries 
specifically and, between these and the salary-fixing power of the heads 
of departments, there remained little power for the Common Council under 
sec. 97 of the Consolidation Act (also taken from the charter of 1873): 
“The salaries of all officers, whose offices may be created by the Com- 
mon Council for the purpose of giving effect to the provisions of this act, 
shall, subject to the other provisions of this act, be prescribed by ordinance 
or resolution * * *” (italics again the author’s). 

*L. 1897, ch. 378, sec. 1536, “* * * The head of every department, 
* * * shall have power * * * to fix and regulate, within the limits of his 
appropriation and subject to the restrictions, if any, hereinbefore prescribed, 
the salaries and compensation of said subordinates, appointees and em- 
ployes.” Sec. 233 provided: “The salaries of all officers paid from the 
city treasury not embraced in any department shall be fixed by the munic- 
ipal assembly and the board of estimate and apportionment, unless 
otherwise provided by law or by this act.” 


LOCAL POWER TO CHANGE THE SOURCES 113 


upon the recommendation of the Board of Estimate and 
Apportionment, to fix the salary of any officer or person 
whose compensation is paid out of the city treasury, ir- 
respective of the amount fixed by this act, except that no 
change shall be made in the salary of an elected officer or 
head of a department during the term for which he was 
elected or appointed.” 


The Amendatory Act of 1901, assuming a different theory of 
administration, cut off the power of the individual heads of 
departments over salaries. Section 56 was continued and ampli- 
fied. One phrase was altered: instead of stating “the municipal 
assembly shall have power * * *” it was made to read, “‘it 
shall be the duty of the board of aldermen * * *.” One 
phrase was qualified by the addition of an important exception: 
after the words, “ officer or person whose compensation is paid 
out of the city treasury,” the act of 1901 added, “ other than day 
laborers, and teachers, examiners and members of the super- 
vising staff of the department of education.”* In addition to 
these changes, the Amendatory Act of 1901 added provisions 
which regulated the exercise of the power in two respects. It 
stated that salaries need not be uniform throughout the several 
boroughs, but it stipulated the facts which should govern the 
variation. In the second place, it curtailed the relative power of 
the Board of Aldermen in salary-fixing, by providing, first, that 
it should have power only to reduce the salaries recommended by 
the Board of Estimate and, second, that the Mayor might veto 
each reduction separately, although many salaries were consid- 
ered together, and that, unless overriden by a three-fourths vote, 
such veto would give effect to the recommendation of the Board 
of Estimate. The section, as amended, closed with the express 
proviso: “All salaries as fixed on the first day of January, 
nineteen hundred and two, shall continue in force until fixed 
by the board of aldermen as in this section provided.” As thus 
reshaped, section 56 has remained unchanged in its permanent 


*The Charter Revision Commission’s draft proposed making an ex- 
ception only of day laborers; the other exceptions were added in the Legis- 
lature. 


114 STATUTORY SOURCES OF NEW YORK 


aspects. One amendment was added in 1902,° applicable only 
in the framing of the budget of 1902, which, as a measure of 
transition to the new charter, temporarily gave the power over 
salaries to the Board of Estimate alone. The power itself was 


not affected. 
Early Ambiguities. 


The report of the Charter Revision Commission of 1900 
shows that it was aware of uncertainties in the original phrase- 
ology of the section, as found in the Greater New York Charter. 
The Commission, moreover, was not blind to the fact that uncer- 
tainty offered a welcome excuse when, caught between the gen- 
eral public and groups of interested city employees, both city 
and state were loath to admit responsibility in the precarious 


*L. 1902, ch. 435, approved Apr. 8. The change of jurisdiction made 
by it terminated May 1, 1902. A complementary measure, L. 1902, ch. 436, 
amended sec. 10, relating to “expenses of the city for the years 1898 
and 1902.” It may be noted, in passing, that the Inferior Criminal Courts 
Act, L. 1910, ch. 659, sec. 104, made a limited application of conditional 
repeal, stating in part: “ The salaries of all justices, magistrates, officers 
and employees of the Court of Special Sessions and of the City Magis- 
trates’ courts shall continue as they exist at the time this act shall take 
effect, unless and until thereafter changed by the Board of Aldermen 
upon the recommendation of the Board of Estimate and Apportionment, 
subject to the veto of the Mayor.” Other provisions, which cannot be 
repeated, limited the scope of this in so far as it applied to the justices. 
So, too, L. 1915, ch. 581, relating to the Municipal Court, amended sec. 
1373. of the charter to read in part: “The Board of Estimate and Ap- 
portionment shall, on the recommendation of the board of justices pre- 
scribe the number of assistant clerks, stenographers, interpreters, attend- 
ants and other employees of the said court for each borough and shall fix 
their respective salaries, except as herein specifically provided.” The sal- 
aries of a number of the grades were, however, stated in the amended 
section. 

* The Commission remarked: “One of the great evils of our munic- 
ipal system has been the organized importunity practiced on the Legislature 
by large classes of city employees. The practice is an evil in itself, is 
demoralizing to the force, and it operates to relieve the local authorities 
of that responsibility which ought to be always fastened upon them.” 
Therefore the Commission proposed to extend existing provisions of the 
charter which prohibited uniformed members of the police and fire depart- 
ments from membership in associations intended to affect legislation. 
Report of the Charter Revision Commission, Dec. 1, 1900, pp. 46-7. For 
the pre-existing provisions, see secs. 306 (police) and 739 (fire). The 
Commission’s recommendation was carried out in secs. 536 (street, clean- 
ing) and 1099 (education), but was not adopted in sec. 1195 (health). 


LOCAL POWER TO CHANGE THE SOURCES 115 


question of salary control. After stating that the increase of 
salaries had been the most important factor* in a dangerous 
swelling of city expenditures since the formation of the Greater 
City, the report continued :’ 

“ Unfortunately, it is not possible to fix responsibility for this 
condition. The local authorities, upon whom responsibility ought 
justly to rest, point to the fact that in many cases, involving 
numerous officials, salaries have been raised against their protest 
by the action of the State authorities. The State authorities, on 
the other hand, are able to point to a provision in the existing 
Charter, empowering the Municipal Assembly, upon the recom- 
mendation of the Board of Estimate and Apportionment, to fix 
the salary of any officer of the City Government, whether pro- 
vided for in the Charter or not. A condition of things under 
which such extravagant increases in the ordinary expenses of the 
City are possible, and under which it is impracticable to hold 
either City or State officers responsible, ought not to continue. 
It has seemed to the Commission that the power of determining 
the amount of salaries to be paid ought to be vested absolutely 
in the officials chosen by the voters of the city itself, and that it 
is most unfortunate that any action in regard to such a matter 
should be taken by the representatives of other and distant 
localities. 

“We have therefore recommended that the powers already 
conferred upon the Board of Estimate and Apportionment and 
the Municipal Assembly shall be extended so that it shall no 
longer be merely within the power of the City legislature, but 
it shall also be its duty, to fix the salary of every person who 
draws pay from The City of New York. We propose to take 


*An indication of a current attitude of up-State leaders was given in 
Gov. Odell’s message to the Legislature, Jan. 1, 1902: “In looking over 
the salary list of the City of New York, it will be found there are several 
officials who receive a larger salary than the Governor of the State or the 
cabinet officers of the United States.” Although, he said, interference in 
city government was as a general rule undesirable, he recommended “ac- 
tion by the Legislature which will absolutely fix a percentage based upon 
the total tax levy for the salary lists of all municipalities.” Ex. Jour., in 
Appendix to N. Y. Sen. Jour., 1902, vol. 2, p. 16. 

* Report of the Charter Revision Commission (to the Governor of the 
State of N. Y.,) with proposed amendments, etc., Dec. 1, 1900, pp. 48-9. 


116 STATUTORY SOURCES OF NEW YORK 


away absolutely from every head of department the power to 
fix the salaries of his own subordinates—a power which has 
led to flagrant abuses in the past. | 

“These provisions, coupled with the abolition of the Board of 
Public Improvements, and the present costly system of deputies 
and branch offices in the various boroughs should, we believe, 
lead to early and substantial reductions in salaries, and to an 
intelligent classification of subordinates throughout the whole 
city. Even if it does not, the voters of the city will know whom 
to blame; and they will have full power and authority, if they 
choose, to secure through a change of administration a change 
of policy in this regard.” 


The Uncertain Scope of the Provision as Revised in 1901. 


Unfortunately the revision of 1901 did not remove the un- 
certainties in section 56. There was no clarifying magic in the 
substitution of the phrase, “it shall be the duty of,’ for the 
words, “shall have power.” <A two-fold ambiguity continued to 
lurk in the vital clause, “irrespective of the amount fixed by this 
act.” (1) Did conditional repeal extend to salaries stated in 
special laws which were not included in the charter, some of 
which were and some of which were not included in the unsuper- 
seded parts of the Consolidation Act of 1882? (2) Did condi- 
tional repeal extend to salaries stated in statutes enacted after 
January 1, 1902? The second problem had several phases. 
Could the city authorities change the salary of an office which 
had existed under the law prior to 1902, if the stated salary had 
been subsequently altered by charter amendment or other special 
act of the legislature? Could the city authorities change the 
salary of an office which had existed in law prior to 1902, if 
any statutory provisions relating to it had been altered, although 
without affecting the original salary? Could the city authorities 
change the salary of an office created after 1902 by a statute 
which had also stated the amount of compensation? 

It is somewhat strange that all doubtful points under sec- 
tion 56 have not been adjudicated. A provision which governs 


LOCAL POWER TO CHANGE THE SOURCES 117 


the control over salaries touches the self-interest of many; one 
might have expected that every possible situation would be 
brought to the courts for decision. Litigation has been more 
than abundant on certain aspects of the matter, especially in 
connection with control over salaries in the semi-autonomous 
departments of city government. Yet as late as 1915 it was 
necessary for the Corporation Counsel to undertake, with an 
admission of doubt, the answer of the questions which have been 
outlined in the preceding paragraph. His brief opinion must 
be our main reliance. 

Two cases which approached the problem of conditional 
repeal as applied to salaries, but which did not come decisively 
to grips with it, may first be examined. They concerned related, 
but different, provisions. Baker v. City of New York’ arose 
under the charter of 1897. It involved the fees of the sten- 
ographer employed by the coroners in each borough under a 
section of the charter * which, unlike the previous provision on 
this point in the Consolidation Act, said nothing about compensa- 
tion. Hamburger v. Board of Estimate * arose under the Charter 
of 1901. It involved the office of coroner’s clerk, established by the 
same section; whereas the Consolidation Act had stated the 
salary of clerk, the charter, in mentioning this office, expressly 
stated that the clerk should receive “‘an annual salary to be 
fixed by the board of estimate and apportionment and the board 
of aldermen.” The first case involved an attempt to collect the 
fees for transcripts which the Consolidation Act had stipulated 
in addition to the salary; the second, an attempt to compel the 
payment of the salary named in the Consolidation Act instead 
of a lower amount fixed by ordinance. The question in both 
cases was whether the provisions of the Consolidation Act re- 
garding the compensation of these offices were still in effect. 
Section 56 was incidentally discussed, but its bearing was weak- 


* (1900) 56 App. Div. 350, 67 N. Y. Supp. 814. 

*Sec, 1571 in both L. 1897, ch. 378 and L. 1901, ch. 466, subsequently 
repealed by L. 1915, ch. 284, in effect Jan. 1, 1918, which abolished the 
coroners. 


* (1905) 109 App. Div. 427, 96 N. Y. Supp. 130, appeal dism’d 184 
Nea 0/2: - 5 


118 STATUTORY SOURCES OF NEW YORK 


ened, in the first instance, by the fact that there it was a fee 
for a special service about which the charter was silent, and not 
the salary that was at stake, and, in the latter instance, by the 
fact that the provision authorizing the office explicitly conferred 
power to fix the salary on the central governing boards of the 
city. 

Baker v. City of New York held that the provisions of the 
Consolidation Act regarding the stenographer’s fees had not been 
superseded, despite their omission both from the charter and 
from the ordinances relating to the position.” Incidentally, the 
court tended to construe section 56 narrowly, and to hold that 
the salary-fixing power of the Board of Aldermen and the Board 
of Estimate was confined to the offices created by them. Ham- 
burger v. Board of Estimate indicated a more liberal interpre- 
tation. The Court said of section 56, as amended through 1902, 
“This seems to have been as broad a grant of power as human 
language could frame,” and it added, “I am inclined to think 
that ‘any officer or person whose compensation is paid out of the 
city treasury’ is limited only by the words ‘an elected officer 
or head of department during his term.’”’ The factors which 
compromised the conclusiveness of this decision* have been 
indicated. At least, the concept of conditional repeal of express 
provisions in existing law was not challenged. 

In the face of the poverty of cases in point, when in 1915 
the Office of Commissioner of Accounts undertook to study the 
effect of mandatory legislation upon the New York City budget 
and found that the full potential extent of local discretion in the 
fixing of salaries was one of the most important factors which 
must be discovered, it was necessary to ask the opinion of the 


* See supra, p. 33, for a discussion of this case in connection with the 
proposition that the Greater New York Charter did not supersede the 
salen the Consolidation Act which it neither covered nor expressly re- 
pealed. 

*Hamburger v. Board of. Estimate was subsequently cited (according 
to Shepard’s Cits., through Je. 1922) in one case, Walters v. City of New 
York (1907) 119 App. Div. 464, 105 N. Y. Supp. 950. ‘This, however, 
did not involve the relationship of an ordinance to a prior special law, 
but involved the civil service law regarding veterans’ preference in its 
relation to local control of positions and salaries. 


LOCAL POWER TO CHANGE THE SOURCES 119 


Corporation Counsel upon submitted questions.” The first of 
these was particular in its terms and need not be considered. 
The second question read: 


“What is the effect of the provision of section 56 of 
the Charter giving to the Board of Aldermen power to fix 
salaries ‘ irrespective of the amount fixed by’ the Charter? 
This section seems to have been last amended by ch. 435 of 
the L. of 1902. ‘May the Board of Aldermen change any 
salary fixed by a section of the Charter passed prior to 
1902? May it alter salaries fixed by amendments of 
the Charter passed subsequent to 1902?” 


The Corporation Counsel answered: 


“Referring to question 2, in my opinion the Board of 
Aldermen, pursuant to the provisions of section 56 of 
the Charter, may change any salary fixed by a section of 
the Charter passed prior to 1902. As to salaries fixed 
by amendment of the Charter passed subsequently to 1902, 
the answer is not free from doubt. If a section is 
amended wherein, among other things, the salary of an 
office or position is provided for, but the amount of the 
salary or compensation is not changed, I incline to the 
view that such amendment would not interfere with the 
power of the Board of Aldermen to fix salaries as pro- 
vided in section 56. On the other hand, if subsequently 
to 1902 a section of the Charter has been amended 
whereby the amount of the salary or compensation of an 
office or position has been changed, I incline to the view 
that it would be held that the amount fixed by such amend- 
ment would be binding upon the Board of Aldermen and 
the Board of Estimate and Apportionment.” 


The third question read: 


“Where a salary is specifically fixed by an act of the 
legislature at a definite figure, can the Board of Estimate 


*46 Opinions of the Corporation Counsel of New York City, 415-7, the 
opinion being addressed to the Commissioner of Accounts on June 10, 1915. 
For the latter’s application of the opinion, see Report on A Study of the 
Effect of Mandatory Legislation Upon the Budget for the Year 1915, 
issued June 15, 1915, by L. M. Wallstein, Commissioner of Accounts. 


120 STATUTORY SOURCES OF NEW YORK 


and the Board of Aldermen legally fix such salary at a 
higher rate?” 


To this Corporation Counsel replied: 

“Referring to question 3, I assume you refer to acts 
other than the Greater New York Charter. I am of © 
opinion that a salary fixed by legislative enactment other 
than by the Greater New York Charter may not be 
increased by the Board of Estimate and Apportionment 
and Board of Aldermen.” 


The law of the matter can rest here. Such has been the settled 
practice of the city authorities both before and after. 


Proposals to Enlarge Local Power Over Salaries. 


Proposals to confer a broader and less equivocal power to 
change salaries have been introduced in the Legislature in recent 
years. In the sense that they have remained suggestions and have 
not become actual provisions of law, their consideration belongs 
in later pages and there they will be mentioned in connection 
with the proposal that the City be given power to change its 
departmental organization regardless of existing law.” They 
may be briefly noted here, however, in order to emphasize the 
incomplete nature of the power given by section 56 of the char- 
ter. In 1915 a bill* was introduced by Senator Bennett and 


*Infra p. 124. 

7S. Int. No. 607; A. Int. 831. Neither was considered on the floor. 
Of this proposal, the Report of| the Committee on Legislation of the Citi- 
zens’ Union, 1915, p. 7, said: “The first bill introduced to give the city 
control over salaries now mandatory was drafted by your committee. It 
was introduced by’ Senator Bennett and Assemblyman Stoddard. It gave 
concurrent jurisdiction to the Board of Estimate and Apportionment and 
the Board of Aldermen to fix salaries approximating $30,000,000, or nearly 
one-sixth of the city’s annual budget, over which it now has no control. 
It included the compensation of county officers and employees, other than 
justices, but it did not include public school teachers.” The proposal was 
not as recent as the foregding report indicates. The Report of the Com- 
mittee on Legislation of the Citizens’ Union for 1906. p. 11, stated: “ Last 
year and this year the Senate Cities’ Committee introduced a bill giving 
the city complete authority over all salaries paid by the city. This bill 
has met the determined opposition of the Brooklyn Republican members 
who seem to think that home rule for Brooklyn is by way of Albany.” 


LOCALE POWER TO CHANGE THE SOURCES. 121 


Assemblyman Stoddard and another * by Senator Cromwell, who 
had been for so long Borough President of Richmond and a 
member of the Board of Estimate. In the same session, Mr. 
Cromwell introduced a charter amendment which proposed to 
empower the Board of Estimate to fix the number of all 
appointive officers and employees paid from the City treasury.’ 

_ In 1916 the proposal to great power to change both the salaries 
and the numbers of employees was part of the program of the 
Legislative Joint Committee for the Investigation of the Finances 
of New York City.” Its chairman, Senator Brown, sponsored 
a bill“ which, subject to local referendum, proposed to empower 
the central governing boards of New York City to change the 
salaries and numbers of city employeés and, separately, a bill * 
which advanced similar provisions in relation to county positions. 
Both passed the Senate, by votes of 41 to 1° and 36 to 7,7 
respectively, but only the bill relating to city employees was 
successful in the Assembly, passing by a vote of 128 to 12. 
Before its passage it was weakened by the exclusion of members 
of the teaching and supervising staff in the Department of 
Education. Mayor Mitchel, who had urged a more emphatic 
power over both salaries and numbers of all employees, vetoed 
this partial and doubly compromised proposal. Other bills in 
the session of 1916 made no progress; at least one of them 
revealed a motive that was less concern for the administrative 


Pit NO. S82, 

a So intaNowl224, 

* Report of the Joint Legislative Committee for the Investigation of 
the Finances of New York City, Feb. 7, 1916, in N. Y. Sen. Docs., 1916, 
no. 25, p. 20. The committee estimated a saving of $2,500,000 annually 
“by conferring on city power to fix salaries,” and a similar economy 
“in bringing county government under city control.” Jbid., p. 21. 

©S.) IntiNot 594.) Pry No. 7343 Al Ree No,” 356. 

"So inte No, S00 Pro Naw 15567A. Rec. No. 357, 

*N. Y. Sen. Jour., 1916, p. 1257. The single negative vote cast by 
Lawson, Rep., of Kings. 

"Tbid., p. 1257. The seven negative votes, in addition to one by Sen. 
Lawson, were cast by Democrats, of which four were from Kings, one 
from Queens, one from Bronx, and one (a Sullivan) from New York 
County. 

*N. Y. Ass. Jour., 1916, p. 2411-2. The twelve in the negative were 
New York City Democrats, four from New York County, four from 
Queens, three from Kings, and one from Bronx, 


122 STATUTORY SOURCES OF NEW YORK 


integration of the City than jealousy for the Board of Aldermen 
against the encroachments of the Board of Estimate.’ 

Since 1916 the proposals which have been actively promoted 
have concerned the control of county, rather than city, salaries. 
Bills * to that end, affecting both salaries and numbers of employ- 
ees, came to nothing in the session of 1919. In 1920, however, a 
measure proposing to centralize control of the compensation 
of county employees advanced far enough to afford an interest- 
ing vote. After passing the Senate by 41 to 5,° it was reported 
by the Assembly Rules Committee with both the majority and 
the minority leaders recorded in favor as members of the com- 
mittee. Suddenly, on the motion of the Republican majority 
leader, it was recommitted by a vote of 82 to 49. Aside from 
the members from New York City, the alignment was strictly 
partisan ; all up-State Republicans, with one exception, supported 
the motion, and all up-state Democrats opposed it. Of the New 
York City assemblymen who voted, however, only 9 (all Repub- 
licans) favored recommittal; 42 City members supported the 
measure, 23 being Democrats and 19 Republicans. The reluc- 


*S. Int. 1457, introduced on Apr. 14 by Sen. Patten, Dem., of Kings, 
proposing a referendum on the question: ‘ Shall the powers of the 
Board of Estimate and the Board of Aldermen in respect to salaries be 
coordinate?” On the previous day Sen. Patten had also introduced S. Int. 
1437, providing a scheme of salary control. See also A. Int. 1585. 

4S. Int. No. 952>S. Pr; No.*1086° (salaries); S. Int No, 954 Prana 
1088 (numbers), both by Sen. Dunnigan, Dem., of Bronx. ~ 

°S. Int. 457, S. Pr. No. 488 (Sen. Downing); A. Rec. No. 170. 

*“N. Y. Sen. Jour., 1920, p. 603. Of the five opponents of the measure, 
one was a Bronx Republican, two were Kings Democrats, and two were 
up-State Republicans. 

°N. Y. Ass. Jour., 1920, p. 2993. The distribution of the negative vote, 
favorable to the measure, was in more detail: Democrats: N. Y. Co., 9; 
Kings, 6; Queens, 1; Richmond, 1; Bronx, 6; up-State, 6; Republicans: 
N. Y. Co., 7; Kings, 8; Queens, 4; up-State, 1. An interpretation of the 
circumstances which evoked this vote is given in the Report of the Com- 
mittee on Legislation of the Citizens’ Union, 1920, p. 40: “This action” 
(the report of the measure by the Rules Committee) “was taken by the 
Speaker under the mistaken belief that Republican leaders in New York 
City desired it. When this ‘error’ was discovered the Speaker promised 
that he would have the measure recommitted. New York City politicians 
lobbied hard for recommittal. The Citizens’ Union made it clear to city 
members that this measure afforded a particularly good test of New York 
City’s sincerity in regard to municipal home rule. As a result, when 
Majority Leader Adler moved recommittal, a large number of Republican 
Assemblymen from the city refused to support his motion.” 


LOCAL POWER TO CHANGE THE SOURCES — 123 


tance that prompted this defeat was reflected in the elimination 
from the home rule amendment, while under consideration by 
the Senate Committee on Affairs of Cities in 1922, of the pro- 
vision by which the powers of a city containing more than one 
county were extended to county employees. It is fair to add, 
however, that the same Legislature at last enacted an amendment 
to the charter* which has greatly enlarged the power of the 
central city authorities over county salaries, while balancing this 
extension of control by the abolition of the scheme of separate 
county tax rates and by thus shifting the cost of county govern- 
ment to the city treasury. 

The observer who scents partisan motives at work here may 
profitably speculate on the reasons why, far from being promi- 
nent planks in the program of the minority floor leadership and 
city spokesmen during the last few years, bills proposing a 
broad control over city salaries have not even been introduced.’ 
He is naive indeed if he is surprised. The history of the pro- 
visions on salary-fixing has from the beginning shown rather 
less of the will to power than of the will to escape it. 


The Existing Provision as Precedent and Warning. 


To the student of the statutory sources of the government 
of the Greater City, these considerations are part of his lesson 
but neither they nor the proposals to broaden the charter pro- 
vision permitting the change of salaries are his main interest. 
The provision, as it is already embodied in section 56 of the 
charter, has for him a double significance. (1) On the point 
of law, it is a precedent. Limited though its application has 


pie 1922. ch, 58. 

The absence of such bills is emphasized by noting that the one bill 
touching the salary-fixing power broadly had an exactly opposite purpose. 
At the 1921 session A. Int. 1190, A. Pr. No. 1314, introduced by Mr. 
Burchill, a N. Y. Co. Democrat, proposed the addition of sec. 56a in the 
charter, providing that no salary of any officer coming within the scope 
of the preceding section should be lowered below the amount fixed when 
the act should have taken effect. This bill passed the Assembly on April 
14, 1921, by the formally recorded vote of 142:00. N. Y. Ass. Jour., 1921, 
p. 2362. Becoming S. Rec. No. 524, it ended with reference to committee. 


124 STATUTORY SOURCES OF NEW, YORK 


been, section 56 has been an accepted use of a scheme of con- 
ditional repeal whereby, without detailed enumeration, express 
language in statutes can be set aside by local action. (2) In point 
of draftsmanship, it is a warning. The needless ambiguities 
already noted give it a lesser place, as a pattern to avoid, beside 
the two other examples of conditional repeal which have been 
reviewed. ' 


AB 


Proposed Application of Conditional Repeal in a Blanket Grant 
of Power to Reorganize Departments. 


Another seeming short cut to a flexible charter lies in a 
broad grant by state law of local power to reorganize. depart- 
ments despite the provisions of existing law.’ It must be re- 
garded in legal theory as a slightly different application of the 
scheme of conditional repeal. Its possible applications to New 
York City are two-fold: (1) as an amendment of the existing 
charter, divorced from any attempt at general revision; (2) 
on a more ambitious scale, as a basic assumption in a new and 


briefer charter. 
Interest in the more modest possibilities of the device grew 
as the recent movement for municipal reorganization in the 


*A partial application has long existed. Charters since 1873 (L. 1873, 
ch. 335. sec. 28) have authorized heads of department to consolidate 
bureaus established by law. As amended, the phrase now runs (L. 1901, 
ch. 466, sec. 1543): “Any head of department or borough president, may, 
with the consent of the Board of Estimate and Apportionment, consolidate 
any two or more bureaus established by law, and may change the duties 
of any bureau * * *” Partial applications, along a different line, will 
be found among the acts which, from time to time, have reorganized the 
structure of departments. See e.g., L. 1916, ch. 528, sec. 4, amending 
charter sec. 595, subd. 2, in connection with the creation of the Depart- 
ment of Plant and Structures: “ The Board of Estimate and Apportion- 
ment may in its discretion direct the transfer of the powers and duties of 
the Police Department, the Department of Street Cleaning, the Depart- 
ment of Parks, the Department of Public Charities, the Department of 
Correction, the Fire Department, the Department of Health and the 
Board of Trustees of Bellevue and Allied Hospitals in respect of the con- 
struction, maintenance, upkeep and repair of buildings and structures, and 
the repair of boats, vehicles, apparatus and equipment, to the Department 
of Plant and Structures.” 


PEGA OWER  TOCCHANGE FHE SOURCES 4125 


United States progressed beyond its earlier preoccupation in 
the central structure of city government and began to place in- 
creasing emphasis upon such underlying administrative processes 
as the allocation of functions, personnel methods, financial con- 
trol, and the like. A reflection of this interest was the recom- 
mendation of the Joint Legislative Committee for the Investiga- 
tion of the Finances of New York City in 1916 that power be 
given to the City authorities to consolidate departments, which 
the committee estimated would save two million dollars 
annually.” No bill to amend the charter in this direction, how- 
ever, was introduced at the time. The chairman of the Joint- 
Legislative Committee, Senator Elon R. Brown, doubted the 
competence of the Legislature to enact it without a constitutional 
amendment. For three years thereafter his so-called “ home 
rule amendment” ’* embarrassed the advocates of a more com- 
prehensive constitutional grant. Passed only by the Senate in 
1916, the “ Brown” amendment slipped through both houses in 
1917° but lapsed in the following year. 

In 1918 a bill* which proposed to amend the New York City 
charter by giving power to consolidate and abolish departments 


*Report (the first) of the Joint Legislative Committee for the Inves- 
tigation of the Finances of the City of New York, Feb. 7, 1916, in N. Y. 
Sen. Docs., vol. 14, no. 25, p. 21. This recommendation was one of four- 
teen items in the Committee’s program of proposed legislation. The in- 
vestigation had first been authorized by resolution of Apr. 24, 1915, largely 
provoked by New York City’s complaint of embarrassment in the face of 
a direct tax; the committee was continued by resolutions of Mar. 30, 1916, 
Jan, .15,. 1917, and Apr. .5, 1917. 

2 As introduced in 1917, Sen. Brown’s amendment (S. Int. 53, Pr. 1730, 
as given in N. Y, Sen. Jour., 1917, p. 1900-1) stated, as the gist of its 
positive side, “the Legislature may by general laws confer upon cities 
such powers of local legislation and administration as the Legislature may 
from time to time deem expedient.” It does not seem that this wording 
would have removed beyond a!l possible doubt by a court disposed to a 
strict view, the question of the power of a city to set aside the express 
provisions of existing law regarding departmental organization or anything 
else. 

®S. No. 1730; A. Rec. No. 310. 

*S. Int. No. 446, Pr. No. 1263; A. Rec. No. 345. Introduced Feb. 14 by 
Sen. Foley, D., of N. Y. C.; passed Senate Apr. 5, by 40:1 (Sen. Lock- 
wood, R., of Kings in negative) N. Y. Sen. Jour., 1918, p. 1029. As A. 
Rec. No. 345 it died in the Assembly after reference to committee. Apr. 
8, N. Y. Ass. Jour., 1918, p. 1662. 


126 STATUTORY SOURCES OF NEW YORK 


passed the Senate. It did not fare as well in the next session,” 
but passed the Senate in 1920 in slightly altered form,’ and, 
by this time a hardy perennial, was introduced without result 
in the session of 1921.8 


Judicial Construction of the Optional City Government Law tn 
Its Relation to Local Power Over the Statutory Sources 
of Administrative Organization. 


The constitutional feasibility of the scheme was strengthened 
in 1918 by the ultimate vindication of the Optional City Govern- 
ment Law for second and third class cities, after four years of 
clouded legality. The act permitted any city in these classes to 
choose by referendum any one of six forms of government. 
These were briefly described as regards their central organs and 
the powers of the latter. 


1S, Int. No. 140, Pr. No. 141 (Sen. Foley); A. Int. No. 642, Pr. No. 
680 (Mr. Donohue), proposing a new charter section, 44a, providing that 
Board of Aldermen, on prior recommendation of Board of Estimate and 
with the Mayor’s approval, might abolish any board, body, commission, 
department or office and transfer its powers and duties to any other 
agency. These identical bills died in committee. 

7S. Int. No. 1673, Pr. No. 2141 (Sen. Walker), proposing a new char- 
ter section, 113, to authorize the Board of Estimate, with the concurrence 
of the Board of Aldermen, to transfer functions from one department to 
another. Advanced to third reading without reference and passed unani- 
mously in the Senate on Apr. 21 (N. Y. Sen. Jour., 1920, p: 1678) ; becom- 
ing A. Rec. 778, ended in Assembly with reference to the cities’ committee. 

7A Int. 591, Pr. 619 (Mr. Donohue). No such proposal was intro- 
duced in 1922, doubtless in view of pending charter revision. 

*L. 1914, ch. 444. A few points of its legislative history may be re- 
called. A slightly similar bill, applicable to third class cities, was intro- 
duced in 1911, in view of the wish of certain elements in Lockport to 
secure a new type of government. N. Y. Times, Apr. 16, 1911, 8:1. In 
developed form it became part of the program of the Municipal Goy- 
ernment Association in collaboration with the Conference of Mayors. 
After the failure of the bill to move in the regular session of 1913, the 
Conference of Mayors urged action at the special session and the Gov- 
ernor endorsed the proposa! in his special message, July 8, 1913. WN. Y. 
Sen. Docs., 1913 (extra sess.), vol. 30, no. 15. Action came in 1914, S. 
Int. No. 659 (A. Int. No. 835), A, Rec. No. 420, passed in the Senate, 
Mar. 25, by 47:2 (the negative voters being one Republican and one 
Democrat, both up-State), V. Y. Sen. Jour., 1914, p. 1361, and; passed in 
the Assembly, Mar. 26, by 135:4 (the opposition consisting of three up- 
State Republican members and one Democratic member from Brooklyn) 
N. Y. Ass. Jour., 1914, p. 2047. Approved Apr. 16. * 


LOCAL POWER TO CHANGE THE SOURCES 127 


The crucial necessity of the act was to dovetail the new 
forms, thus outlined, into the very extensive body of pre-existing 
legislation which affects any city. This was partly accomplished 
by the familiar legislative devices of continuing all present 
powers’ and of repealing inconsistent provisions of law.’ The 
- acute difficulty lay in the clauses* which left it to the city to 
make a selection from pre-existing law, using bases of selection 
other than the question of inevitable inconsistency with the 
stated terms of the Optional City Government Law. At this 
point, the act predicated a distinction between powers, on the 
one hand, and, on the other, their location with a particular 
administrative agency and the regulation of the method of their 
exercise. While, therefore, pre-existing powers continued, the 
council under any one of the new schemes was given authority 
to “confer by ordinance upon any officer or employee of the 
city any powers, or to impose upon any such officer or employee 
any duties, theretofore conferred or imposed upon any officer 
or employee by provision of law.” It was provided further that 
“whenever by any such ordinance all the powers and duties of 
any appointive officer or employee of the city are conferred or 
imposed upon one or more other officers or employees, such 
ordinance may abolish the office or employment.’ Similarly, 
authority was given to supersede provisions which governed the 
method of carrying out any power. It was said that the council 
should “have power to regulate by ordinance the exercise ot 
any power and the performance of any duty by any officer or 
any employee of the city; and upon the passing of any such 
ordinance every provision of the charter or of the second class 
cities law, applicable to such city, regulating the matters, or 
any of them, provided for in such ordinance, shall cease to have 
any force or effect in such city.” * 

Doubt was thrown upon the legality of this vital feature of 
the act by an opinion of the Attorney General on Jan. 11, 19165 
aah: sec. 4. 

matte. ssec. oS. 

* Art. III, sec. 37, entitled “ Effect upon provisions of existing law of 
adoption of ordinance regulating subject-matter thereof.’ 

* Qualifications were here attached to preserve existing restrictions on 


the methods of granting franchises, disposing of real estate, or incurring 


indebtedness. 
° Report of the Attorney General, 1916, pp. 79-95. 


128 STATUTORY SOURCES OF NEW YORK 


Could the Council of Niagara Falls, which had voted on Nov. 3, 
1914, to operate under one of the forms provided, change the 
title of Overseer of the Poor, as provided in the former charter, 
to Commissioner of Public Charities? The answer made by the 
Attorney General was partly compromised, from the standpoint 
of the present discussion, by the fact that he held poor relief 
to be a State function. Many of his statements along this line 
could easily be construed to forbid grants of power to cities 
which have been the practice of years. The crux of the opinion, 
however, was the contention that the Legislature must set defi- 
nite limits to its grants and that, where it did not expressly repeal 
its own former laws, it could provide for their repeal only in so 
far as they might be found directly inconsistent with the stated 
terms of its new enactments. 

The doubt which beset the act was finally allayed in Cleve- 
land v. Watertown,’ in which, four years after the passage of 
the act, the Court of Appeals flatly reversed the courts below in 
regard to the matter before it. The decision is of such interest 
in connection with the Legislature’s power to put its laws at the 
mercy of ordinances that extended quotation will not be afield. 
Justice McLaughlin said of the Optional City Government Law: 


“It is complete in itself and the forms of government 
provided for are also complete. Nothing remains to be 


*In the face of these doubts, Niagara Falls was given the city-manager 
form of government (which it had elected under the optional law) by a 
special legislative charter of over one hundred pages, L. 1916, ch. 530, 
approved May 12. This provided, among other things, that (sec. 330) 
“The passage of this act shall not be deemed to take from the city any 
powers conferred by ch. 444 of L. of 1914.” It was, therefore, com- 
paratively obvious for the Court to hold in People ex rel, Shipston vw. 
Thompson (1921), 187 N. Y. Supp., 395, aff’d 196 App. Div. 923, 187 
N. Y. Supp. 949, aff’d without opinion 231 N. Y. 541, that the enactment 
of the legislative charter after the city had voted to accept plan “C” did 
not preclude it from voting later on the adoption of plan “F.” The 
proposed change did not succeed. 

7(1918) 222 N. Y. 159, rev’g 179 App. Div. 954, 166 N. Y. Supp. 286, 
which had aff’d. 99 Misc. 66, 165 N. Y. Supp. 305. Watertown was the 
third city to elect to operate under one of the plans provided, voting for 
“C” (city-manager form) on Nov. 2, 1915. The lower courts held that 


the unconstitutional parts were so intertwined in the act as to render the 
whole invalid. 


LOCAL POWER TO CHANGE THE SOURCES 129 


done to make the act an existing law. (p. 165) * * * It 
is in legal effect a new charter which the city does not 
make, but which it accepts in place of the one it now has, 
and the only powers delegated are those relating to local 
self-government which the Legislature can grant if it sees 
fit to do so. The act does not, as claimed, permit the city 
to frame its own charter, but presents one to it to be ac- 
cepted or not and defines, if accepted, the powers of the » 
governing officers” (p. 169). 


And, turning to the vexed question of the grant to the council 
of authority to re-allocate powers, to reshape the conditions gov- 
erning their exercise, and to abolish offices, the Court seemed to 
endorse the notion that power is an essence which, unimpaired 
by changing shapes, can be poured from vessel to vessel, saying: 


“Tt is true that the section confers great power on the 
council to control and manage the city government, but 
this power does not authorize the council to add to or to 
take from the power already possessed by the city or to 
avoid the performance of any duty now imposed on it by 
law * * * Authority to distribute and to regulate the 
exercise of a power is not equivalent to an authority to 
enlarge a power already existing” (p. 168). 


Although this decision did not dispose of all the questions 
that inhere in conditional repeal, it seemed at least to clear the 
way for a method whereby the Legislature can strike a short-cut 
past detailed provisions of existing law. The decision, therefore, 
must be given an important place beside the precedents for con- 
ditional repeal which have here been discussed, in laying the basis 
for a parting analysis of the problem of simplifying the statutory 
sources of New York City government. 


CHAPTER V. 


THE PROBLEM OF SIMPLIFICATION. 


Introductory—Survey of Alternative Methods of Simplifying the 
Statutory Sources of New York City Government—(I) The Oid 
Method of Blanket Repeal of Inconsistent and Blanket Continu- 
ance of Consistent Law—(II) The Outright Repeal of All Prior 
Law Omitted from a New Charter—(III) The Disposition of 
Prior Law Through Some Form of Conditional Repeal—(A) 
Conditional Repeal Through an Administrative Code—(B) Con- 
ditional Repeal of All Special Laws Affecting the City Govern- 
ment, Without Detailed Segregation by the Legislature of the 
Parts Subject to Local Control and Without Time Limit—(C) 
Conditional Repeal of All Special Laws Affecting the City Govern- 
ment, Contingently Upon the Preparation of a Local Consolidation 
of the Useful Provisions Thereof—Conclusion. 


Introductory. 


The simplification of the statutory sources of New York 
City’s government has asserted itself as an insistent problem 
throughout the preceding pages. It is time to draw together the 
threads of the discussion. An answer to the problem can best 
be indicated by surveying the several alternative methods whereby 
simplification might be essayed, and by recalling the lessons that 
can be drawn from experience with the devices already described. 

A limitation must be borne in mind from the outset. It is 
idle to expect that a great city can be governed without a detailed 
body of written provisions in laws or in ordinances. The every- 
day work of city government touches property and persons at 
many points and in ways that give rise to lasting relationships not 
only between the city and private individuals but also between 
private individuals. Illustrations too obvious to mention are 
readily forthcoming from such fields of activity as street open- 
ings and assessments, on the one hand, and the administration 
of institutional and out-door relief, on the other. The provisions 
governing such affairs as these are in the main matters of admin- 
istrative procedure; it is none the less important, however, that 
three requirements be satisfied. The provisions should be speci- 
fic; they should be conveniently assembled; they should be stable 
enough to accumulate definite interpretations. 


THE PROBLEM OF SIMPLIFICATION 131 


This three-fold need has undoubtedly been an influential fac- 
tor in the development of the characteristic American practice of 
elaborate city charters. It does not follow, however, that the 
requirement of an express, assembled, and relatively stable status 
can be achieved only through legislative enactment. The provi- 
sions of the Greater New York charter regarding street open- 
ings, for example, have not been more immune from alteration 
than the locally enacted building and sanitary codes.. 


Survey of Alternative Methods of Simplifying the Statutory 
Sources of New York City Government. 


The simplification of the statutory sources of New York City’s 
government, it is evident, involves two phases: (1) the form of 
the charter, in the narrower sense of the latter term; (2) the 
relationship between the charter and the pre-existing bodies of 
law applicable to the city. Actually the two phases of the prob- 
lem are inseparable, and the second conditions the first. The 
charter, in the formal sense, may be shortened, but if it allows 
other special city laws to continue without provision for their 
subsequent modification locally, it remains in fact a long charter. 
Furthermore, if the charter seeks to adjust the relations between 
itself and the earlier bodies of law by means of broad clauses of 
uncertain application, the charter is in fact complicated, however 
simple its terms may appear. The form of the charter may be 
changed by the division of its provisions between a charter, 
proper, and an administrative code, but this device is chiefly sig- 
nificant as a method of giving the local authorities control over 
details hitherto fixed in state law. Alterations in the form of 
the charter are thus so dependent for their real effect upon the 
relation established between the charter and the earlier laws sur- 
rounding the city government that the possible changes in form 
are best revealed incidentally in an analysis of possible methods 
of disposing of old law. Unless attention is directed sharply to 
the latter, the simplification of the city’s law can easily be con- 
fused with what is merely the simplification of the task of charter 
revision. 


132 STATUTORY SOURCES OF NEW YORK 


Charter revision, then, must provide for the disposition of the 
masses of pre-existing law. What are the alternatives? They 
are stated briefly in outline, as a prelude to their examination 
one by one. 


(1) It is possible, in enacting a new charter, to employ the 
method used both in the original Greater New, York Charter and 
in the Amendatory Act of 1901. This method is to repeal blanket- 
fashion whatever in pre-existing law is or may later be found to 
be inconsistent with the charter or covered by it, and in the same 
sweeping way to continue the remainder. This method may 
be varied by accompanying the new charter with the specific 
repeal of numerous prior acts. But unless these specific repealers 
exhaust the earlier legislation, the blanket repealing and saving 
clauses just described will be indispensable. 


(II) It is possible to make the charter a virtual consolidation 
of all the provisions of special law, old and new, that are deemed 
necessary to the operation of the city government, and, without 
qualification other than a general clause preservative of existing 
proprietary rights and perhaps the enumeration of certain speci- 
fically excepted acts, to repeal everything else. This method 
really comprises two alternatives, depending upon whether the 
charter is short or long. 


(IIT) It is possible, in adopting a new charter, to apply some 
plan of conditional repeal to the special laws not embraced by the 
new charter itself. Three variations of the method are open: 


(A) The provisions of law affecting the city may be segre- 
gated in two documents, both of which would receive the initial 
approval of the Legislature, but one of which (called, perhaps, 
the administrative code) would thenceforth be amendable locally. 
Unless the code were deliberately made a consolidation of all 
provisions of earlier law not covered by the charter (an arrange- 
ment not advocated in the proposals for an administrative code 
thus far broached), it would still be necessary to dispose somehow 
of an unknown body of pre-existing law; this could be done by 
the use of the qualified repealing and saving clauses indicated 
under the first heading, or by outright repeal, or by conditional 
repeal. 


THE PROBLEM OF SIMPLIFICATION 133 


(B) The Legislature may enact a new charter as a single, 
brief instrument, and may declare all other special legislation ap- 
plicable to New York City government to be subject thenceforth 
to modification by local action. 

(C) Features of the two foregoing procedures may be com- 
bined in a third variation of the method of conditional repeal. A 
new charter may be enacted to take effect on some future date, 
with a provision repealing all other special New York City legis- . 
lation as of that date, and with the requirement that in the mean- 
time the city authorities shall sift all this prior legislation and 
shall incorporate necessary provisions from it in a coherent body 
of ordinances. 

Such, in the barest outline, are the alternatives by which the 
simplification of the statutory sources of the city government may 
be attempted. The ground can now be retraced more slowly, 
and each alternative examined in turn. 


(1) The Old Method of Blanket Repeal of Inconsistent and 
Blanket Continuance of Consistent Law. 


The possibilities indicated under the first heading can be 
quickly dismissed. It would be a calamity, a quarter of a century 
after the adoption of the Greater New York Charter, to copy the 
expedient for which even then shortage of time was a poor ex- 
cuse. The effect would be to prolong indefinitely the statutory 
confusion that has long surrounded the city government. 

The difficulties that have attended upon the use of loose re- 
pealing and saving clauses in the New York charter have been 
indicated. In the first place, it is uncertain what laws actively 
apply to the city today. The factors that have combined to pro- 
duce this condition need be recalled only briefly. (a) The New 
York City Consolidation! Act of 1882 (which, like all other special 
New York City legislation antedating the Greater New York 
charter, remains in force except in so far as it has been repealed 
specifically, or by reason of inconsistency with later statute law, 
or by reason of the fact that its subject-matter has been revised 
or included in some charter provision) has been assumed to be 
the foundation of the Greater New York Charter; but the Con- 
solidation Act of 1882 cannot be clearly proved to have exhausted 


134 STATUTORY SOURCES OF NEW YORK 


earlier legislation, and the search for active law on any point, 
if it is to be absolutely sure, must examine the statutes back 
to 1784.1 (b) After 1882, furthermore, the legislation was again 
scattered’ by the enactment of laws that did not in terms amend 
the Consolidation Act.2. (c) The charter of 1897 did not attempt 
to clarify the confusion but merely repealed provisions which 
were inconsistent or the subject-matter of which it covered in 
terms or effect.2 (d) The charter of 1897 further created un- 
certainty by conferring on the Greater City an unknown legacy 
of powers formerly possessed by the smaller consolidated munic- 
ipalities, and it complicated matters still further by extending 
through the area of the enlarged city all such provisions of con- 
sistent law affecting the old City of New York as “are not in 
their nature locally inapplicable to other portions of the city.’ 
(e) The Amendatory Act of 1901 did not cure the situation; if 
anything, it left it worse in that, although it specifically repealed 
numerous sections of the charter of 1897, it continued parts of 
the latter that it did not reprint. (f) Since 1897 the passage of 
special acts which have not in terms amended the charter and 
which frequently have amended neither charter nor Consolidation 
Act has gone on unchecked at the rate of two for every formal 
charter amendment.® Asa result, the boundaries of the statutory 
sources of New York City’s government are intricate on all sides 
and at several points are quite obscure.6 In the second place, 
aside from the difficulty of finding out all the provisions of law 
that may apply to a given situation, the question of consistency 
or inconsistency can be answered only by judicial or administra- 
tive decision. The disclosure of the real charter proceeds slowly, 
as situations present themselves acutely enough to provoke such 
decisions. Phases of the city’s law are still unresolved. 

Such are the elements of uncertainty that inhere in the policy 


* Supra, pp. 35-52, for an analysis of the problem of repeal under the 
Consolidation Act. 

* Supra, pp. 10-15. 

* Supra, pp. 28-32, for a recital of the repealers and saving clauses 
of the Greater New York Charter and of the Amendatory Act of 1901; 
pp. 32-35, for examples of the application of these provisions in the courts. 

* Supra, pp. 52-56. 

* Supra, p. 18, and table, in Appendix A. 

* Supra, pp. 80-82, for a skeletonized presentation of the situation, the 
evolution of which is traced broadly in the first chapter. 


THE PROBLEM OF SIMPLIFICATION 135 


of continuing consistent and repealing inconsistent prior law. The 
extent of the resulting inconvenience cannot be measured merely 
in public actions litigated in courts of record; its real extent could 
be read, if it were possible to trace it at all, in perplexity, inves- 
tigation, and delay in the round of public administration and also 
in private disputes that distantly involve the city’s law. But 
the inconvenience that results from uncertainty is not the sole, 
nor even the greatest, disadvantage attendant upon this policy of . 
repeal. Its inevitable effect is to conserve statutory details and 
to place these beyond the reach of the local authorities. In so far 
as a new charter allows these to continue without increasing 
local power over them, it detracts from whatever seeming brevity 
may be given to ifs formal contents and whatever seeming 
breadth may be given to its grant of power. 

These disadvantages might be lessened, of course, through the 
use of a list of specific repeals, whereby the more patently super- 
seded or unnecessary laws might be disposed of at a stroke. Such 
a device at the best would be a partial corrective, however, unless 
the repealers were exhaustive (and to make them so would con- 
stitute a quite different policy of repeal, discussed under the next 
heading) ; it would still be necessary to fall back upon general 
clauses of repeal. Furthermore, no extensive use of specific 
repealers is possible without a close examination of the existing 
statutory sources. It is sheer waste to enter far on such an exam- 
ination except under a plan that purposes to cover the whole and 
to dispose with finality of what it finds. 

No new charter can genuinely simplify the statutory basis of 
New York City’s government if it introduces general clauses that 
repeal inconsistent and permit the continuance of all that is con- 
sistent in existing law. The experience of the city, while it fur- 
nishes ample precedents, condemns the further use of the device. 


C(I.) The Outright Repeal of All Prior Law Omitted from a 
New Charter. 


The second group of possibilities, characterized by the defini- 
tive repeal of prior legislation, deserves more respectful con- 
sideration. The objective—a charter that in itself will express 
all the active provisions of special law applicable to the city gov- 


136 STATUTORY SOURCES OF NEW YORK 


ernment—can be approached by two courses that are very dif- 
ferent in method and in consequences. On the one hand, a 
relatively brief charter might be drawn, and, without any attempt 
at detailed examination of the earlier statutory sources of city 
government, all prior legislation might be cleared away by a 
slashing phrase. On the other hand, the existing legislation might 
be treated more conservatively, and, at the price of much pains 
and with the final result of a relatively lengthy document, the 
charter might be made a veritable consolidation of all active pro- 
visions of law applicable to the City of New York. One of these 
courses is a counsel of courage, perhaps of rashness; the other, 
of caution and patience; both at least avoid the line of least re- 
sistance into which previous charter revisions have so unfortu- 
nately slipped. The two possibilities require separate comment 
and appraisal. 

(A) A brief charter accompanied by the sweeping and imme- 
diate repeal of all prior legislation is a novel and adventurous 
proposal in the light of the city’s history. The earlier chapters 
have shown the extent to which the laws affecting the city lie 
outside the formal charter. If the charter were shortened, the 
relative importance of the omitted matter would probably be in- 
creased. Would it be safe to repeal all this outlying legislation 
at a stroke? Ifa ready and sure reply were possible, the statu- 
tory confusion that engulfs the charter would not be truly chaos. 
No certain answer can be extracted from the adjudicated cases 
in which application has been given to provisions illustrative of 
the mass of law in question.! Vital issues, it must be admitted, 
have not been in evidence. If the policy of a sweeping repeal 
were adopted, doubtless the most serious risk—the possible dis- 
turbance of existing property relations—could be off-set in large 
measure by the use of a clause preservative of existing rights; a 
suggestion for such a clause, if not an exact pattern, is found in 
the phrases attached to the Brooklyn Consolidation Act of 1888.2 


* Supra, pp. 34, 48. 

71 1888, ch. 583, “An Act to revise and combine in a single act all 
existing special and local laws affecting public interests in the City of 
Brooklyn.” Sec. 35 recited: “ * * * all local and Special acts passed prior 
to “fan; 1888, relating to the corporation of ‘the City of Brooklyn’ 
designated in sec. 1 of title 1 of this act or to the administration of the 


THE PROBLEM OF SIMPLIFICATION 137 


Nevertheless, although one cannot in candor raise alarms over 
the dangers involved, the scheme of a sweeping and immediate 
repeal in connection with a relatively brief charter must be de- 
clared a faulty method of disposing of an elaborately interwoven 
fabric of statutes. The disturbance of the existing legal basis 
of numerous details of administrative procedure, in the absence 
of provision for a transition, is enough to condemn it. If the 
choice lay between such a method and the former method of 
loose repealing and continuing clauses, doubtless it would be 
preferable to incur the possible risks of drastic, outright repeal 
and to rely upon later legislation to correct any extreme situations 
that might appear in practice. Fortunately the choice is not so 
narrow; other methods are open. 


(B) The second variation of the method of sweeping and 
immediate repeal of prior law contemplates a longer charter—a 
charter that would be a genuine consolidation of all the active 
provisions of law applicable to New York City. The plan im- 
plies a detailed scrutiny which, going back of the charters of 
Greater New York, back of the New York City Consolidation 
Act of 1882, back also into the legislative histories of the other 
amalgamated communities, would comb the session laws from the 
beginning. It is a task which has not been done for forty years 
and which has needed doing nearly as long. It is a task which the 
preparation of a digest-compilation of the special statutes affect- 
ing the municipalities now included in the Greater City, published 
in 1922 after nearly eight years spent in preparation, has made 
appreciably easier.t But it is a task which cannot be done quickly 


property or affairs of said corporation, except * * * ” (here the act named 
four specific acts) * * * “are hereby repealed; provided, however, that 
nothing in this section contained shall abrogate, annul, impair, or in any 
manner affect the corporate powers, rights, privileges or franchises of the 
said ‘the City of Brooklyn,’ or any lien, contract, right, title or interest 
heretofore acquired by said corporation or by any other person * * * .” 
The remainder of the proviso was the usual stipulation to protect actions 
already instituted. The use of the term, “corporate powers” in this con- 
nection is of doubtful wisdom. It is one thing to attempt to protect the 
vested property interests of the city; it is quite another matter to preserve 
powers and thus to complicate future questions as to the competence of 
the city to act by introducing an obscure if not unknown quantity into the 
definition of local power. For further comment on this point, infra, 
pp. 151-2. 
* Supra, p. 25, for a description of its scope. 


138 STATUTORY SOURCES OF NEW YORK 


and which should not be undertaken unless the execution can be 
thorough and the results definitive. It is a task, therefore, which 
in practice must either be performed before charter revision be- 
gins (and it has been in this sense, as a prelude to a revision of 
the charter with reference to governmental structure and other 
major problems of policy, that a consolidation of local laws has 
been especially advocated during the last decade),! or it must be 
provided for afterward. 

Aside from these practical obstacles, arising from shortage 
of time and inadequacy of staff, the plan of a charter that would 
be a complete consolidation of existing laws (without differentia- 
tion of parts subject to local control) presents a grave objection 
from the standpoint of current opinion regarding city govern- 
ment. It presumes a detailed charter, restrictive of city powers. 
These defects conspire to make the plan seem impracticable in 
execution and undesirable in consequences. 


The possibilities thus far discussed ought probably to be re- 
jected on one ground or another. The first group of methods 
would prolong the double disadvantage of uncertainty and of the 
dependence of the city upon many detailed statutory provisions. 
The second group would either assume the risk and inconvenience 
of a summary repeal, or, if it were sought to make the charter 
a real consolidation, would encounter both the practical obstacles 
to its preparation and the permanent embarrassment of an elab- 
orate statutory basis for ‘city government. What is needed, 
evidently, is some more flexible system of repeal. 


(III) The Disposition of Prior Law Through Some Form of 
Conditional Repeal. 


The third group of possibilities involves varying applications — 
of what has been called conditional repeal. The term indicates 
a scheme whereby the Legislature repeals statutory provisions 
contingently upon the enactment of ordinances in their place. 
Although the repeal is technically a legislative act, the laws in 


* Supra, pp. 23-4, for illustrations of this point of view. 


THE PROBLEM OF SIMPLIFICATION 139 


question are thus made subject practically to local modification. 
The advantages of the method are two-fold: it does not repeal 
out of hand but permits a transition by means of substitution; 
it transfers control over detail from state to local authorities. 

Conditional repeal is not new in connection with New York 
City statutes; several instances of its use have been described 
-at length in the preceding chapter. It was applied to the building 
laws by the charter of 1897,1 and to forty-six designated charter | 
sections by the Amendatory Act of 1901;2 less directly, it has 
been used with the limited grant of local power to fix salaries 
irrespective of the provisions of existing law,? and it has been 
considered in connection with the proposed grant of local power 
to reshdpe administrative organization.4 Not only has the legal- 
ity of these several precedents for conditional repeal passed 
unchallenged, but the decision in Cleveland v. Watertown ® (aris- 
ing in another connection) has tended to confirm the competence 
of the Legislature to authorize the local authorities, in carrying 
out a new charter, to dislodge statutory provisions in regard to 
city administration which are found to be unsuitable, although 
such statutory provisions have not been repealed specifically and 
although they are not positively inconsistent with the terms of 
the new charter. 

Yet the execution of schemes of conditional repeal may pre- 
sent serious difficulties. The composite experience with the sev- 
eral uses of the device has shown three sources of trouble: (1) 
the problem of defining clearly just what provisions of the law 
are covered by the conditional repeal and are accordingly sub- 
ject to local action in the future; (2) the problem of defining 
precisely what form local action must take in order to effect 
the repeal; (3) the less vexing problem of defining the power of 
the Legislature, before the repeal is effected, to amend a provi- 
sion that has been conditionally repealed, and the related problem 
of defining the effect of such intermediate amendment by the 


* Supra, pp. 97-104. 

2 Supra, pp. 104-111. 

* Supra, pp. 111-124. 

* Supra, pp. 124-126. 

*°(1918) 222 N. Y. 159, construing the Optional City Government Law 
of 1914. For a discussion, supra, pp. 126-129. 


140 STATUTORY SOURCES OF NEW YORK 


Legislature upon the subsequent status of the provision in ques- 
tion. These difficulties 1 are inherent but not irremediable; care- 
ful drafting can largely remove them. Their presence, however, 
constitutes an important factor in choosing between the several 
variations of the broad method of conditional repeal which are 
discussed in the following paragraphs. 


(A) Conditional Repeal Through an Administrative Code. 


The plan of an administrative code is akin in principle to the 
uses already made of conditional repeal under the Greater New 
York charter. Two important differences, however, distinguish 
this proposed embodiment of the idea. (1) The first is one of 
degree. Instead of dealing with one subject merely, as in 1897, 
or with a few miscellaneous sections, as in 1901, the plan of an 
administrative code involves so much of the material of the old 
charter that a sweeping simplification is possible. (2) The second 
is a difference of method. Whereas the 1897 charter repealed all 
provisions on a particular subject, building regulation, without 
attempting to locate these laws or to indicate their repealable por- 
tions, and whereas the charter of 1901 designated certain sections 
in the old charter, without attempting to distinguish the varied 
matter within each section, the plan of an administrative code 
presumes that the Legislature itself will discriminate and segre- 
gate, breaking up the sections of the old charter and of the 
other special city laws and regrouping their provisions. - 

The one official attempt in New York State to work out this 
combination of features was prepared in connection with the ill- 
fated charter submitted to the Legislature of 1909. Even as a 
draft, the proposed code of that year failed, in ways that will 
shortly appear, to carry to.a logical conclusion the idea on which 
it was supposedly founded. Out of it came an interest with which 
movements for charter revision have had to reckon ever since. 
The unsuccessful project of 1907-9 must still serve as the center 
in any discussion of the idea. The plan of an administrative 


*For an exposition of these problems as they have appeared in exist- 
ing schemes, see especially, supra, pp. 101-104; 107-111; 116-120. 


THE PROBLEM OF SIMPLIFICATION 141 


code for New York City seems to have originated with Mr. Ivins 
In any event, it was not a subject of controversy within the Com- 
mission, although two of the members, on the grounds of defects 
- of hurried workmanship, eventually declined to approve the sub- 
mission of the code-draft. The argument on behalf of the 
plan figures prominently in the Commission’s reports. Atter 
reviewing the history of special legislation and of charter tinker- 
ing, the Commission said: 1? 

“ The foregoing review of the evils of continual legisla- 
tive interference in matters of local government and of the 
extremely complicated character of the present city or- 
ganization, suggests the necessity for dividing the charter 
into two parts, one to constitute the organic law of the 
city’s being; the other, an administrative code for the 
guidance of the departments created by that law.” 


The Commission was impressed by an analogy that it believed 
was found in the relation of constitutions to statutory law in 
nation and in states; the charter of a city, it argued, should bea 
fundamental law. The report continued: 2 


“The administrative code, if this plan of revision be 
adopted, should contain all of the purely administrative 
provisions of the present charter, amended so as to har- 
monize with the revised organic law. The Legislature 
should enact this code in the first place. Thereafter, its 
amendment should be in the control of a local legislative 
body, and should be made so difficult of enactment by the 
State Legislature as to prevent mandatory expenditures, 
improvements, increases of salaries, and other inter- 
ferences in local affairs without the clearest possible 
demand from the responsible city authorities, or the people 
of the city as a whole.” 


Throughout its work, the structure of the charter, rather than 
the structure of government, chiefly engaged the energies of the 
Commission. It was to improvements in the form of the charter 


*Report of the Charter Revision Commission of 1907 to the Gov- 
ernor, Nov. 30, 1907, in N. Y. Sen. Docs., vol. 2, no. 10, p 18. Cf.. virtual 
suggestion of repealable code in 1900 by City Club and by City Vigilance 
League. 

*Tbid., pp. 19-20. 


142 STATUTORY SOURCES OF NEW YORK 


that the Commission pointed with the most satisfaction in its 
final report.t 

The execution of the plan was marred by two defects. The 
first was the belatedness of its presentation and its incompleteness. 
Whereas the Commission reported to the Legislature on March 8, 
1909 and a bill that embodied the draft of the charter, proper, 
was introduced at that time, the administrative code was not 
presented until April 20. When it was presented, it was offered 
only “as an aid to the legislative committees, and not as a bill for 
passage.’ 2 Yet this course was defended as a matter of policy. 
At a committee hearing on March 23, when question was raised 
about the missing code, Mr. Ivins said that the Commission could 
not submit it until it had received a yes or no on the charter; it 
would then submit it chapter by chapter, as each corresponding 
part of the charter was taken up for detailed consideration.’ 
Without the text of the code, however, the Legislature could not 
easily answer the question of a fundamental reorganization in the 
form of the charter itself. 

A second and more important defect in the plan was the 


*Report of the New York Charter Commission to the Legisiature, 
March 8, 1909, in N. Y. Sen. Docs., 1909, vol. 6, no. 27, p. 6. ‘“‘ The chief 
value of the Commission’s work and the feature of it which has required 
the most time and care is its attempt to give intelligible and coherent 
shape to the entire charter and to separate the organic or structural mat- 
ters of city government from adjective or administrative details.” 

*Letter of transmittal, April 20, 1909, printed with the code draft in 
N.Y. Sen. Docs., 1909, vol. 6, no. 27. A postscript expressed the dissent 
of J. H. Dougherty and N. A. Elsberg: ‘‘ We cannot approve of the 
transmission of this document, the work of the Commission being in our 
judgment not sufficiently advanced for report to the Legislature.” The 
Commission’s report, op. cit., p. 7, made a virtue of what, one fears, was 
merely necessity, stating: “ Because of the flexibility of the code and the 
ease with which it may be modified to conform with legislative decision 
upon the charter, and as well because of lack of time to frame to the full 
satisfaction of the Commission the several code chapters, it has been 
deemed wise to defer the presentation of the code until the legislative com- 
mittees shall have reached their conclusions. The charter may be con- 
sidered independently of the adminstrative code, but the converse proposi- 
tion is not true.” 

* Brooklyn Standard Union, Mar. 24, 1909. Mr. Dougherty was doubt- 
less nearer the true explanation when he begged the committee not to press 
for an early submittal of the code; it was too much, he said, for flesh 
and blood to stand. Idem. Shortly afterward, the interested but hostile 
correspondent of the Standard Union wrote in the issue of April 6: “Con- 
trary to general expectation, the Ivins’ adminstrative code is being rushed 
to completion.” 


THE PROBLEM OF SIMPLIFICATION 143 


Commission’s failure to propose that the whole of the administra- 
tive code should be subject to alteration by the local legislative 
body. On this point the Commission’s own reports were some- 
what confusing. The draft of the charter submitted on April 8, 
1909, stated that “The council may alter, amend or repeal the 
administrative code as expressly provided therein.” 1 This left 
the process of repeal to be clarified in the draft of the code. 
When that document finally appeared, it stated: “ The council 
shall have power by ordinance to repeal, modify or amend the 
following chapters and titles of this act.” 2 A blank space fol- 
lowed. It was thus indicated that the code would be divided in 
practice into two classes of provisions—the unenumerated parts 
being amendable only by the State Legislature. But the all-im- 
portant enumeration was not given. In their report no more than 
a vague hint was given of the principle that the Commission in- 
tended to be applied: 3 


“It (the council) may also amend certain specified 
sections of the administrative code which are so local in 
their operation that they may properly be altered by the 
city legislature, thus relieving the State Legislature from 
consideration of unnecessary administrative detail.” 


The stark interrogation of the blank spaces in the draft of the 
code crowned the uncertainty that characterized throughout the 
manner in which the Commission submitted this proposal. 

Did not the Commission fatally compromise the idea with 
which they worked? Are not the advantages of segregating de- 
tail in an administrative code destroyed unless the whole of it is 
subjected to alteration locally or at least to some mode of amend- 
ment that differs substantially from that applicable to the charter 
proper? Certain advantages may be admitted to exist regardless 
of a different method of amending the administrative code. A 
shorter charter might be more readily popularized; the funda- 


*Ch, Lil, ~ The Council,” sec, 35. The drafts of the charter and of 
ay geo are available, among other places, in N. Y. Sen. Docs. 1909, vol. 
Noo Z2/. 
*Ch. II, “ The Council,” Title II, “Powers,” sec. 28a. 
POPS Gt pel: 


144 STATUTORY SOURCES OF NEW YORK 


mental features of city government comprised in such a charter 
might by custom (although in the absence of a constitutional 
amendment no legal barrier would protect it) achieve relative 
immunity from tinkering by friend or foe. But against such 
possible advantages must be set the serious disadvantage of a 
further scattering of the law. To the charter and ordinances 
of the city, the scheme of 1909 would have added in effect two 
new elements—-the one consisting of the parts of the administra- 
tive code made subject.to local amendment and the other, of the 
parts subject to legislative control—and this is not to mention the 
uncoordinated special laws and relevant provisions in the general 
statutes. The proposal could not have failed to result in in- 
creasing the confusion in the legal sources of the city govern- 
ment. Unless all of its provisions are subject to a wholly different 
method of amendment (presumably by local authorities), the 
separation of a civil administrative code from the charter is not 
simplification but complication.! 

After the still-birth of the Ivins report, the plan of an 
administrative code passed under a cloud. It was directly 
repudiated by the Legislative Joint Committee on the Charter 
of the City of New York (to which the work of the Commission 
was referred as to a receiver in bankruptcy) ; it was not broached 
seriously at any stage in the charter revision movement which, 
beginning under the auspices of the city authorities in 1910, 
side-tracked the other proposals but went down in defeat in the 
dramatic charter controversy of 1911. The argument with which 


1In so far as the Commission dropped from both charter and ad- 
ministrative code details (and did not throw them into the penal law, the 
code of criminal procedure, the public officers’ law, and other general 
statutes, this being another phase of their scheme of simplification), the 
Commission’s recommendations did affect the power of the state over the 
city. Their 1909 report stated: ‘The charter will consist of 75,000 
words; the present charter contains over half a million. The administra- 
tive code will be no larger than the charter. The charter and code to- 
gether will be about one-quarter the volume of the present charter.” Op. 
Cit., p. 7. It must be added, on the other side of the account, that the 
repealing clauses in the Commission’s draft of the code repealed the Con- 
solidation Act and the Greater New York Charter and their amendments, 
but said absolutely nothing about other legislation affecting the City of 
New York. 


THE PROBLEM OF SIMPLIFICATION 145 


the Legislative Joint Committee dismissed the plan showed that 
“simplification,” like most slogans of reform, is double-edged: + 


“The tendency of modern legislation is toward sim- 
plification and the inclusion of all cognate matter in one 
instrument—a policy most recently exemplified by the 
enactment of the “ Consolidated Laws.’ 

All who have had occasion to examine a charter find 
it much more convenient and less confusing if they are 
able to find under one title, chapter or other division, 
related subject-matter. In this view we are confirmed 
by the opinion of officials and others, who have had occa- 
sion to constantly study or interpret the provisions of the 
existing. Charter rar a 

In view of the plan of the Commission in regard to 
the authority to be conferred upon the local legislative 
body, it seems to have been deemed desirable that the 
provisions which would be affected by the power to 
repeal or amend should be contained in a statute separate 
from the charter. It is unnecessary to discuss at length 
the extent or limitation of the power of the Legislature 
to delegate the authority to repeal or amend legislative 
acts in the manner proposed; for in the opinion of the 
Committee such comprehensive power should not be 
delegated to a local legislative body even if constitution- 
ally possible. 

Thus another reason advanced by the Commission for 
an administrative code separate from a charter ceases to 
be controlling.” 


But the Legislative Joint Committee did not quite turn its 
back on the idea of dislodging some material from the body of 
the charter. Recalling the example of the conditional repeal 
of certain sections in 1901, their report said:? “It will be nec- 
essary, however, to retain in a proposed charter many provisions 


* Report of the Legislative Committee on Charter of the City of New 
York, transmitted to the Legislature, Jan. 28, 1910, in N. Y. Ass. Docs., 
1910, no. 5, pp. 7-8. 

* Op. Cit., p. 10. 


146 STATUTORY SOURCES OF NEW YORK 


which properly have no place therein, but which must remain 
until the board of aldermen passes ordinances with reference 
thereto.” : 

Advocacy of an administrative code, however, did not cease 
with the death of the Ivins’ proposal. Speaking on November 
19, 1914, Mayor Mitchel was quoted as saying :3 


“In my opinion, the City charter should be divided 
into two distinct portions. There should be a general 
grant to be the organic law of the City. This should be 
brief and broad. Then there should be an administrative 
code corresponding to the by-laws of a corporation, which 
should be easily amendable by the local legislative body, 
subject of course to the Mayor’s veto.” 


Endorsed from its inception by the elements dedicated con- 
sciously to municipal reform,? the idea of simplification through 
an administrative code completely subjected to local control 
became almost a commonplace with civic organizations.’ 

Nevertheless, despite the many off-hand endorsements given 
it, the scheme of an administrative code to be adopted by the 
Legislature simultaneously with the enactment of a new charter 
is open to grave objections. The question of the inclusiveness 
of the code is fundamental. Will the code, as passed by the 
Legislature, cover all the statutory provisions that now affect 
the government of New York City, with the exception of those 


*N. Y. Times, Nov.. 20, 1914, 9:1. See also comment by Mr. Mc- 
Aneny (then President of the Board of Aldermen and chairman of the 
Charter Revision Committee of the Board of Estimate) before the 
Academy of Political Science, Proc. of the Academy of Political Science, 
Aprile lolbvsvol WV ange oy Doneeb. 

*See, for example, remarks in the Proceedings of the Buffalo Con- 
ference for Good City Government, 1910, pp. 34-90. 

* For example, the New York City Club’s Committee on Charter Revi- 
sion, 1921: “The most immediate and practicable method for relieving 
this situation wou!ld be a separation of the subject matter of the present 
charter into a charter proper and an administrative code * * * The gen- 
eral scheme of classification recommended by the Ivins Commission could 
well be followed, but with a sharper emphasis upon the point that all 
provisions placed in the Administrative Code are to be subject to local 
amendment or repeal.” Report on Charter Revision, Prepared by the 
on. el eb Submission to the New York Charter Commission, Dec. 

pp 


THE PROBLEM OF SIMPLIFICATION 147 


embraced in terms or effect in the new charter and of those 
definitely repealed? If the answer is in the affirmative, the 
scheme of an administrative code is defensible in theory; but 
it then falls before the practical difficulty of effecting a compre- 
hensive examination and consolidation of local laws in the midst 
of the onerous burden of charter revision. If the answer is in 
- the negative, the scheme misses the heart of the problem of 
simplifying the statutory sources of city government. There 
would remain, outside both charter and code, a vague border- 
land of statutes. These ought somehow to be disposed of. To 
dispose of them by a simple declaration that inconsistent pro- 
visions were repealed and consistent provisions were continued 
would entail the evils already discussed. To repeal them out- 
right without examination would incur the risks already indi- 
cated. The third alternative would be to dispose of them by 
some method of conditional repeal. The unfortunate result 
of the latter course would be to give rise to at least four, and 
probably five, bodies of law specially applicable to New York 
City: first, the charter; second, the code; third, statutory provi- 
sions not covered by either charter or code, but subjected to 
conditional repeal; fourth, the common ordinances; fifth, there 
would probably also be a number of special statutes not subjected 
to conditional repeal and standing quite separate. 

Such are the disadvantages inherent in the proposal that an 
administrative code be adopted simultaneously with a new char- 
ter. It is fair to note, however, that there is one important 
consideration which may favor the adoption even of a partia! 
code. The Legislature might deem it necessary, in giving its 
assent to a new charter, to make preliminary adjustments in the 
outstanding details of administrative organization and procedure, 
before putting these at the disposal of the local legislative body. 
If the legislature were to assume this attitude, a code would be 
a reasonable expedient. In such a case, however, the code should 
be characterized by the following features: it should be repre- 
sented expressly as a beginning only; the local legislative body 
should be given the same power over the borderland of statutes 
applicable to the city that it has over the code. 


148 STATUTORY SOURCES OF NEW YORK 


(B) Conditional Repeal of All Special Laws Affecting the City 
Government, Without Detailed Segregation by the Legisla- 
ture of the Parts Subject to Local Control and Without Time 
Limut. 


A second use of conditional repeal would consist in a brief 
stipulation that, consistently with the terms of the new (and 
presumably shortened) charter, the local legislative authority 
might modify all statutes specially affecting the government of 
the City of New York, with the possible exception of certain 
statutes specifically enumerated. This method would avoid the 
double difficulty noted in connection with the proposal of an 
administrative code. It would extend the principle of condi- 
tional repeal through ail or nearly all of the statutory sources 
of the City government; yet it would not throw the task of 
an immediate examination of these sources upon the shoulders 
of men pressed for time and preoccupied with the broader 
aspects of the charter. But it, too, has defects that warrant its 
rejection if a more satisfactory escape can be found. 

In the first place, it invites on a magnified scale those diff- 
culties of drafting and those uncertainties in execution that have 
been noted in connection with earlier, partial uses of conditional 
repeal under the Greater New York charter. Not all the acts 
that affect New York City, affect New York City peculiarly; 
not all the acts that peculiarly affect New York City, affect the 
government of the City, as distinguished from private or semi- 
private interests therein; even the acts that specially affect New 
York City government, are frequently not involved as whole 
acts, but only in respect to scattered provisions therein. The 
method of repeal now under consideration would entail a defini- 
tion by a broad phrase! of the class of provisions in the statutes 


*E. g. (to quote from a recent proposed draft of a shortened charter): 
“The power of legislation conferred upon the City by this Act includes 
the power to supersede, wholly or in part, as to and within the City of 
New York or to re-enact in modified form, so as to have the force of 
law with respect to and within the City, any law or portion of law of 
the State of New York, heretofore or hereafter enacted, which deals with 
any matter solely of municipal or local concern in or to the City of New 
York, including, among others, all matters concerning which powers are 
delegated to the City by this Act, save in respects as to which power 
is not so delegated * * * .” 


THE PROBLEM OF SIMPLIFICATION 149 


of New York State that were thenceforth to be subject to modifi- 
cation by the local authorities. Even the most careful drafting 
could hardly devise a phrase that would not leave in the future 
endless uncertainty what statutory provisions were or were not 
subject to local control. 

If the plan were adopted, it would be important in the inter- 
- est of orderliness to require the local authorities to exercise their 
broad power of superseding statutory provisions only by specific’ 
reference to the statutes repealed or modified. 

In the second place, the method would allow the precious 
opportunity of charter revision to slip by without guaranteeing 
an end of the present confusion in the statutory sources of the 
City government. The plan of course would permit, but it would 
not definitely invite, let alone require, an early concerted exam- 
ination and consolidation of the provisions of law applicable to 
the City The scattered condition of the City’s law could go 
on indefinitely. The situation would be relieved, to be sure, 
by reason of the transfer of the amending power from the state 
capitol to the city hall. Even this advantage would be largely 
compromised, however, by the fact that it would be hard, not 
only to say whether the pre-existing statutory provisions relevant 
to any situation were subject to local modification, but even to 
find out what statutory provisions were relevant. 


(C) Repeal of All Special Law Affecting the City Government, 
vontingently Upon the Preparation of a Local Consolidation 
of the Useful Provisions Therein. 


The search for a practicable method of disposing of the 
masses of special statutes not covered in the charter leads to a 
final alternative. This method combines features of the two 
schemes of conditional repeal already discussed. In its bare 
essentials, it would involve the following steps: (1) the enact- 
ment of a new and shortened charter, to take effect upon a date 
fixed at least two or three years in advance; (2) the provision 
therein for the repeal, as of that date, of all statutes or parts 
of statutes affecting the government of New York City except 


150 STATUTORY SOURCES OF NEW YORK 


such as the Legislature might specifically reserve from repeal; 
(3) the concomitant requirement that in the meantime a local 
body (appointed, perhaps, by the law department of the City) ! 
should examine all legislation thus subjected to repeal and should 
prepare an orderly consolidation of whatever in it was of current 
use; (4) thenceforth, this consolidation would be subject to local 
modification. 

Within these essential outlines of the plan, several lesser 
though important features can be variously adjusted. One 
feature concerns the submission of the local consolidation to the 
State Legislature. It is obvious that a report of some kind 
should be rendered, since the preparation of the consolidation 
would be pre-requisite to the completion of charter revision. 
Doubtless it should be made the duty of the local authorities 
in this report to recommend the re-enactment of such statutes, 
if any, within the scope of the repeal as might be thought to need 
a continued statutory basis. Thus an opportunity wou!d be 
afforded for corrective or precautionary action, especially nec- 
essary on the border-line between legislation affecting public and 
that affecting merely private interests. As for the local consoli- 
dation itself, it is hardly desirable that the Legislature should 
pass it; it would be enough, by a separate enactment, to recognize 
and to confirm it as the consummation of the new charter. 

A second mooted feature concerns the relation between the 
local consolidation and the common ordinances. Should they be 
united, or should they continue as separate bodies of law? The 
principal factor in determining the answer is the method of 
amendment provided for each; the only justification for keeping 
them separate would lie in the provision of a different, and 
presumably more difficult, procedure for the modification of the 
consolidation based upon provisions previously contained in the 
statutes. This factor depends in turn upon elements—especially 


*A precedent for this is found in the manner of appointing the com- 
missioners who, under L. 1879, ch. 536, prepared the compilation approved 
by L. 1880, ch. 595, entitled, The Special and Local Laws Affecting Public 
Interests in the City of New York, and of appointing the commissioners 
(in practice, the same men) who, ‘under L. 1880, ch. 594, and L. 1881, 
ch. ae prepared the New York City Consolidation Act of 1882. Supra. 
pp. 


THE PROBLEM OF SIMPLIFICATION Pol 


the organization of the local legislative power and the attitude 
taken toward it—which lie outside the present study. If an 
opinion may be ventured here, it must be said that (assuming 
the charter itself is not enacted locally) there should be only one 
method of local legislation and one body of law subject to 
modification locally. Accordingly, the local body charged with 
the original consolidation should be instructed to consider the 
existing ordinances also and to throw them into a common 
melting pot along with the mass of conditionally repealed 
statutes. As matters now stand, the ordinances parallel statutory 
provisions and needlessly duplicate their language at many points. 


Conclusion. 


The alternative methods of disposing of the masses of prior 
special law have been passed in review. The actual choice of a 
method must be conditioned by circumstances, and no abstract 
a priori judgment regarding the relative merits of these methods 
can be final. One thing can be said in conclusion, however. 
Under the circumstances that have characterized charter revision 
in the past and that are likely to attend it in the future, the 
method last described seems preferable. Its advantages have been 
revealed in the discussion of the defects of the other alterna- 
tives. This method seems to combine most satisfactorily the 
elements of inclusiveness and finality, and at the same time to 
avoid choking the process of charter revision with a task of 
multitudinous detail. 

It is presumed that any attempt at the simplification of the 
city’s law will cover, not only the statutes relating directly to 
the present and to the old City of New York, but also those 
relating to the numerous local governments that at one time or 
another have existed within the area of what is now Greater 
New York. The nature of the vague devolution upon the present 
city of the powers of these former governments has been noted 
in a previous chapter.1 This vague devolution should be ter- 


* Supra, pp. 52-56. 


i bey STATUTORY SOURCES OF NEW YORK 


minated. The fact that little practical resort has been made 
to it as a source of power does not render it less desirable to 
cut off even the possibility. As long as it remains, an unknown 
quantity is injected into the definition of city power, and both 
the city authorities and those who have dealings with the city 
are invited to a recurring search into the obscure legislative his- 
tories of long defunct governments. After more than a score 
of years of experience under the Greater New York charter, it 
should be quite feasible, with the advice of the administrative 
departments, to find whether there are items, touching power 
or procedure, which should be expressly saved from the general 
repeal; if so, these can best be picked up and preserved in the 
local consolidation outlined in the preceding paragraphs. Fur- 
thermore, the general saving clause in the new charter, in so far 
as it touches this matter, should concern the City’s heritage of 
property interests, not governmental powers. A similar policy 
should be taken toward the royal charters, which survive as 
sources of city government.! 

Simplification of the statutory sources of city government 
must reckon with more than the accumulations of speciai law. 
An earlier chapter sought to show the extent to which the 
sources of New York City government lie in general laws.2, An 
attempt should be made to clarify, in its application to the 
metropolis, the usual rule that loosely governs the relation of 
general and special statutes on municipal matters. Doubtless, 
much material (penal provisions, for example) previously found 
in the charter and in other special laws could be dropped bodily 
and left to the appropriate chapters of the consolidated laws. 
On the whole, however, the circumstances of New York City 
government seem to dictate that a clearer paramountcy should 
be given to the laws peculiarly applicable to it. The City must 
be conducted under an elaborate body of special provisions, 
made by the state or the locality; furthermore, in so far as the 
special statutes affecting the City are reduced to simpler terms, 
it is presumably with the intent of broadening the scope of 
local power. It is advisable, therefore, that the charter should 


* Supra, pp. 56-58. 
* Supra, Ch. III, p. 59, et seq., especially p. 78. 


THE PROBLEM OF SIMPLIFICATION 153 


declare that no provisions of general law, present or future, 
should apply to New York City unless this be expressly stipu- 
lated therein. It would then be necessary for the Legislature, 
in enacting any provisions of general application in the field of 
municipal affairs, to come directly to grips with the question 
of its application to New York City. The necessity would be 
wholesome. Indeed, in view of the perennial difficulties inherent . 
in overlapping general and special law, it would be an advisable 
legislative policy to state expressly in every general act affecting 
city government the exact scope that such act is intended to have. 

Simplification of the statutory sources of New York City 
government is not a static problem. It is a matter for continuing 
vigilance. Prevision at the time of charter reorganization cannot 
prevent, but it can lessen, the opportunity for confusion to 
reassert itself, as it did after the passage of the New York Con- 
solidation Act of 1882. That act, as has been said, not only 
failed to demonstrate its intent regarding the repeal of prior 
legislation, but also, by its policy of disregarding laws deemed 
temporary in effect, partly invited a speedy disintegration 
through the enactment of special city laws that did not in terms 
amend it. It is the duty of charter revision to facilitate the 
development, in the field of municipal government, of the sound 
principle already applied to the public statutes of the state, so 
that in the future every act within the power of the Legislature 
to pass, however particular and however temporary in its affirma- 
tive effect, will at least be related in its terms to some recognized 
body of law. 

Whatever the circumstances and the method, an end should be 
made of the confusion that characterizes the statutory sources 
of New York City government. Too long has it been tolerated 
by neglect, by caution (equally unfortunate in its effect). and 
by a sense of haste that has hitherto cost the loss of each oppor- 
tunity to deal comprehensively and decisively with this funda- 
mental feature of genuine charter simplification. 


— 


APPENDIX A. 


NEW YORK CITY LEGISLATION 


1900-1921 
INTRODUCED ACTION BY MAyor B eee Ne Micha 
a [o) a a a 

1 +5 by Me 2 
Sales £eSle _| 8 B| £3 
Year| ©, |08t Gia| eos | Zo gE | SB 
38 |-GES | Total| Submitted [Vetoed| Seu )ous|o% | So] 49 
poi Ges ie Gas, (oon | OP at ene g 
ES | ow Re- oeel/ssa|ass| Se | oe 
LO |nas called MHe l>adlHe>| Od | Ze 
1900 ee Pen SOL 241 0 158 14 nie 14 18 Le 
1901 aie are Brisk 135 0 coe 11 te 5 8 Bik 
1902 maid cae 591 103 0 41 0 18 0 P7 26 
1903 136 288 424 165 z 81 0 on 0 2h 48 
1904 149 226 Sis 162 1 45 0 DS 0 40 bes 
1905 145 297 442 168 0 55 5 24 4 38 65 
1906 147 463 610 142 0 40 0 32 0 22 43 
1907 221 430 651 179 0 36 8 50 ‘t 36 at 
1908 169 265 434 69 0 14 0 13 0 22 28 
1909 110 258 368 89 0 De 0 20 0 19 33 
1910 162 298 460 97 0 40 0 4 0 23 41 
1911 132 382 514 120 5 45 0 6 0 24 57, 
1912 140 460 600 95 2, 21 0 6 0 42 46 
1913 246 307 553 157 5 41 0 30 0 39 58 
1914 110 150 260 86 0 28 0 5 0 31 32 
1915 140 230 370 95 ‘a fps 0 hi 0 28 Sis) 
1916 142 199 341 95 0 30 1 0 1 SY) 42 
1917 170 344 514 ala li 1 31 1 Ally 1 37 50 
1918 904 263 357 93 4 33 0 12 0 19 54 
1919 122 244 366 91 0 39 t 5 1 abe; 42 
1920 126 256 382 120 0 41 1 1 0 SL 85 
1921 120 248 368 130 1 57 3 20 3 23 59 

SOURCES: The data in this table have been partly collected and partly com- 


puted from the Legislative Index and other records. It has been checked at most 
peat by comparison with unpublished memoranda in the legislative bureau of the 

aw Department of New York City. The table is added for a humble purpose 
and makes no claim of completeness nor of accuracy. The meaning of special 
city legislation is an uncertain factor which (to say nothing of other grounds of 
difference) is likely to bring discrepancies between any computations of the amount 
of city legislation. 

LAWS PASSED WITHOUT ACCEPTANCE BY CITY: 1900, Ch. 283, amend- 
ing charter to restrict power of water commissioner to contract for supply with 
private persons or corporations; Ch. 461, regarding qualifications of engineers in 

. Y. C.; Ch. 463, amending charter in relation to assessment of pumping stations 
in Nassau County; Ch. 465, authorizing appointment of commission to investigate 
N. Y. C. charter; Ch. 615, amending charter in relation to printing names of 
officials in City Record; Ch. 629, amending charter in relation to testing of gas 
meters; Ch. 647, altering Kings County Hall of Records to accommodate surrogate, 
etc.; Ch. 653, providing for Silver Lake Park in Richmond County; Ch. 663, amend- 
ing charter in relation to offensive trades in Brooklyn; Ch. 751, amending charter, 
in relation to school funds; Ch. 764, for opening, etc., of Bedford Ave., Brooklyn; 
Ch. 765, for opening’ of Remsen Ave., Brooklyn; Ch. 770, for relief of taxpayers 
of 32nd ward, Brooklyn, in providing for field survey; Ch. 776, to establish exterior 
pier line on shores in Borough of Brooklyn. 1901, Ch. 33, reorganizing police de- 
partment to provide single head; Ch. 297, for improvement of Atlantic Ave., Brook- 
lyn; Ch. 466, new charter; Ch. 551, relief to Engine Co. in Borough of Richmond: 
Ch. 590, for improvement of Bedford Ave., Brooklyn. 1905, Ch. 629, amending 
charter by taking franchise granting power from Board of Aldermen; Ch, 631, 
amending Rapid Transit Act; Ch. 638, amending charter in regard to commitment 
of intoxicated persons; Ch. 758, for election of additional justices in Brooklyn. 
1907, Ch. 91, changing location of cost for widening Livingston St., Brooklyn, as 
fixed by Board of Estimate; Ch. 429, Public Service Commissions established; 
Ch. 538, Ch. 558, recount of mayoralty vote in cities of first class; Ch. 600, to inquire 
into charter; Ch. 712, for accommodation of county clerk, etc., in Hall of Records; 
Ch. 748, removal of patients from hospitals restricted. 1916, Ch. 601, right of 
Westchester communities to draw water from N. Y. C.’s supply. 1917, Ch. 719, re- 
moval of tracks on 11th Ave. 1919, Ch. 470, providing celebrations, etc., for re- 
turned soldiers in city containing one or more counties, etc. 1921, Ch. 167, for 
Extension of Southfield Blvd., Richmond; Ch. 518, amending charter, in relation 
to furnishing room and supplies to supreme court; Ch. 670, amending charter, in 
relation to aldermanic districts. 


APPENDIX B. 


CONSTITUTIONAL HOME RULE AMENDMENTS IN THE N. Y. LEGISLATURE 
1911-1922 
The bare legislative history of these proposals is summarized here because of the 
fact that the possibility and the waxing and waning probability of a consti- 


tutional change have necessarily reacted on the consideration of charter re- 
vision and of the statutory devices discussed above. 


ACTION IN LEGISLATURE 


Concurrent resolutions intro- (Further than committee reference) 
duced: (identified: by-mtrodtics) 2a! en Wee ee a, ee 
Session tory number, last print num- Citation Citation 
er, name of introducer, to to 
and number received in other} - Senate Sen. Assembly Ass. 
house) Journal Journal 
*S. Int. 199, Pr. 203 (Grady); 
1911 APrREG (O09 ie eo teehee Passed ure 19,| p. 2472 Passed July 21,] p. 4213 
by 3 with no re- 
corded oppo- 
sition 


— | | | | | 


1912 |TS. Int. 1253 (Burd) 
S. Int. 347 (Loomis) 
tS. Int. 1060 (Pollock) 
1913 | A. Int. 475 (McGrath) 
A. Int. 1693 (Sufrin) 


Ee eS Eee EEE eS eee 


tA. Int. 827, Pr. 1666 (Phillips); 


1914 S Rael GOON ks Pah oes Peas Dias ea heraceh nl ate ain ane Passed Mar. 27,| p. 2277 
tS. Int. 674 (Pollock) by 128:00 
No proposals in Legislature; 
Constitutional home rule pro- 
posal (Int. 712) adopted by 
1915 Constitutional Convention by 
vote 120: 17 (Rev. Rec., p. 
3885-7) and embodied in Art. 
XV, sec. 3, of draft defeated 
at polls, Nov. 2, 1915. 


ee ee eS SS Oe A ee ee 


couint. ease ae 1673 (Brown): 


Ag’ RGEC AGEee hi teen e cae Passed Apr. 15,| p. 1377 
tS. Int. oon PL. 1129 (Mills) by 29:11 
TA. Int. 1323, Pr. 1546 (Welsh) |(Wagner’s mo- 
1916 |fS. Int. 847, Pr. 928 (Wagner) tion to amend 
S. Int. 44 (Bennett) defeated, 
A. Int. 810, Pr. 891 (Gilroy) PIP AN ep} 
xS. Int. 53, Pr. 1730 (Brown);|Passed Apr. 18,| p.1125|Passed May 8,] p. 3051 
A. Rec. 310 by 48:7 by 13732 
TA. Int. 752, Pr. 829 (Welsh); 
Se RECHT OG AE og rats occa nid Sid eee oes teenie on Ie nena Passed May 2,| p. 2825 
1917 |tS. Int..428, Pr. 469 (Mills) (Motion to sub- by 78:37 
tS. Int. 691 (Foley) stitute S. 691 
A. Int. 1289, Pr. 1521 (Shipla-} lost, 12:31; to 
coff) substitute S, 
A. Int. 555, Pr. 593 (Goodman) 428 lost, 
12:30) p. 455 
xS. Int. 866, Pr. 1315 (Brown); 
Be REGED 2s Fes dake ciaek cele Passed Mar. 27,| p. 769 |Apr. 13, laid) p. 2363 
1918) |7S& Int. 2560). (Pry 628€Cr El by"464 aside while on 
Murphy) (Motion to sub- order of 3rd 
TA. Int. P68, Pr. 757 (Welsh) stitute S. 560 reading 


lost 


APPENDIX B 


157 


Concurrent resolutions intro- 
duced (identified by introduc- 


ACTION IN LEGISLATURE 


(Further than committee reference) 


Session tory number, last print num- Citation Citation 
ber, name of introducer, to to 
and number received in other Senate Sen. Assembly Ass. 
house) Journal Journal 

PACE Ent e050 gb hae GOOrOVWelSh kc a lara! ee te bebe o wires Reported Mar. 
+S. Int. 739 (Lockwood) 2, dropped 
1919 |fS. Int. 103 (Foley) Apr. 19, after 
S. Int. 1350 (Block) being engrossed 
for 3rd read- 
ing p. 2690 
tA. Int. 351, Pr. 2260 (Pellet); 
REC OOO ee ae Ie Mera an tun iale [ane pia an ‘aricha. brome APR) Weare Passed Apr. 24,| p. 3150 
1920 |tS. Int. 407, Pr. 433 (Walker) by 78:36 


fA. Int. 455, Pr. 482 (Donohue) 
S. Int. 159, Pr. 161 (Law) 


ee |S | NS | NE | SASS, 


+S. Int. 140, Pr. 142 (Simpson) 

PA. Int. 352, Pr. 353_(Stitt) 

tS. Int. 236, Pr. 243 (Walker) 
tA. Int. 602, Pr. 636 (Donohue) 
A. Int. 582, Pr. 610 (Ullman) 
S. Int. 729, Pr. 806 (Duggan) 


ESF SW | | 


1922 


+S. Int. 58, Pr. 1816 (Tolbert). .|Passed Mar. 17, 
no recorded 
opposition 


TA. Int. 890, Pr. 2009 (Ullman) 
tS. Int. 80 (Walker) 

fA. Int. 44 (Donohue) 

A. Int. 7 (Antin) 

S. Int. 15 (Simpson) 

A. Int. 54 (Leininger) 

A. Int. 148 (Cuvillier) 

S. Int. 1060, Pr. 1233 (McGarry) 
A. Int. 1200, Pr. 1278 (McKee) 


Hee Passed Mar. 17, 
no recorded 
opposition 


*Hardly a true ‘‘home rule’? amendment, in sense of opening way for local charter- 
making. 

+Sponsored by Conference of Mayors, and known after 1915 as “Mayors conference 
proposal’; before 1915 promoted especially by Municipal Government Association. 

xFathered by Chairman of Joint Legislative Committee on Finances of New York 
City, in belief that without constitutional amendment city could not be given control over 


its prescribed administrative organization. 


fIntroduced by the Democratic Floor Leaders. 


INDEX OF CASES. 


Admiral Realty Co. v. C. of N. Y., 71. 

Ahern v. Elder (Ahern, In re), 72 

Aldinger v. Pugh, 61 n. 

- Allen, Matter of, 63. 

Altering Main Street, Sing Sing, Mat- 
ter of, 61 n. 

Application of Church, Matter of, 
70 n. | 


Baker v. C. of N. Y., 33, 117, 118. 

Barker v. Town of Floyd, 62 n. 

Bartlett v. King, 44n. 

Board of Public Improvements, Mat- 
ter of, 34, 35. 

Board of Street Opening, 45, 46. 

Bowen v. U. S., 44. 

Brick Presbyterian Church v. Mayor, 
etc, of N.Y. C., 58x. 

Brigham v. N. Y., 45n., 

Bae City R. Co. v. Whalen, 94, 


95, 96. 
Buffalo (City of), In re, 62n. 
Buffalo (City of) v. Neal, 62n. 
Buffalo (City of) wv. Till, 92 n 


Christey, Matter of, 92. 

City of, see name following 

Clamp, In re, 63 

Cleveland wv. Watertown, 128, 129, 139. 

Coates v. Mayor, etc., of N. Y., 58 n. 

Commissioners of Central Park, In 
re, on, 60. 

Commonwealth v. Grinstead, 50. 

Connor v. Mayor, 51 n. 


Danielsen v. Sigsbee, Humphrey & 
Co., et al., 47, 48. 
Demarest ie Mayor, 

Nees: 
Deiteccentt: v. Wilson, 75. 
Dobson, Matter of, 62 1. 


East 176th St., Matter of (Matter of 
the Mayor), 34” 

Egan, Matter of, 63. 

Ellis v. Paige, 44 n. 

Ely v. Azoy, 36, 46, 47. 

Estate of Prime, Matter of, 34 n. 

Evergreens (The), Matter of, 61 n. 


ete OF C.F OF 


Furman v. Knapp, 57 n. 


Geneva (City of) v. Fenwick, 90, 91. 
Sy v. Northern Union Gas Co., 
Nn. 

Gibbs v. Luther, 90. 

Gilchrist, Matter of, 93. 

Goetz v. Duffy, 101 n. 

Gubner v, McClellan, 71 n. 

Gude, see New York (City of), In 
the Matter of 


Hamburger wv. C. of N. Y., 117, 118. 

Hammer v. State, 50 n. 

Hammitt v. Gaynor, 89, 90. 

Gee | v, Trustees of Rochester, 
49 n. 

Heckmann v. Pinkney, 43 n, 49 n. 

Henneberger, Matter of, 70, 71. 

Heymann v. Steich, 55. 

Higgins v. Bell, 61. 

Hellyer v. Prendergast, 92, 93. 

Huntington, Matter of, 49 n. 


Thrig, In re, 64. 
In re, see name following. 


Jamestown (City of) v. Home Tele- 
phone Co., 61 n. 
Jorgensen v. Squires, 58. 


Kansas City v. Kimball, 50. 

Kenney v. Brooklyn Bridge Stores 
Co., 102 n. 

Kiernan, Matter of, 8n. 

Kobbe Coe pao Ney 102 ». 

Kral v. Lovitz, 49 n. 


Lantry v. Hoffman, 110n. 
Lewis v. City of Syracuse, 61 n. 


McAdam, In re, 9n, 51 n. 

McGrath v. Grout, 77 n. 

McKenna wv. C. of N. Y., 55. 

McKenna v. Edmundstone, 41, 
61 n. 

Matter of, see name following. 

Mayor, etc, of Co of (N..Yo 0, Buek 
39, 40, 41. 

Mayor, Matter of, see East 176th St., 
Matter of. 

aye etc, of N. Y. uv. Ordrenan, 

n. 


42, 


160 


Mercantile National Bank wv. Mayor, 
etc., of N. Y., 46. 

Messer Co. wv. Rothstein, 101. 

Mollnow v. Rafter, 92. 

Moore v. Mayor, etc., of N. Y., 58. 

Morris’ License, see New York (City 
of), In re. 

Municipal Gas Co. v. Public Service 
Commission, 62. 

Murdoch vy. Griffenhagen, 62 n. 


Newman, Jn re, 93. 

New York (City of), In the Matter 
of (O. J. Gude, App.), 103 n. 

New York (City of), In re (Morris’ 
License), 106, 107. 

New York (City of) v. Alhambra 
Theatre Co., 107. 

New York (City of) v. Foster, 101”. 

New York (City of) uv. Trustees of 
Sailors’ Snug Harbor, 100, 101. 

New York (City of) v. Wineburg 
Advertising Co., 102, 103. 

Rent Elevated R. R. Co., Matter of, 


N. Y. Institute for the Deaf and 
Dumb, Matter of, 42, 43, 44, 45, 
46 n, 47. 

Norris v. Crocker, 40. 

Norton, Matter of, 6n. 


O’Connor v. C. of N. Y., 30n. 
ene of East 169th Street, In re, 
Ba 


eer ex rel. Bierach v. York, et al., 

n. 

People ex rel. Boyle v. Cruise, 77 n. 

People v. City of Buffalo, 60m. 

People ex rel. City of N. Y. v. N. Y. 

R. Co., 58, 94, 

People v. Cleary, 49. 

People ex rel. Conklin v. Boyle, 61 n. 

eee ex rel, Economus vw. Coakley, 
nN. 

People ex rel. Fleming wv. Dalton, 


n. 

se: v. Gold and Stock Tel. Co., 
1. 

People ex rel. Hofeller v. Buck, 35 n, 

People v. Jaehne, 42 n, 43, 75 n. 

People v. Jensen, 34n, 76. 

People v. Kane, 51n. 

People ex rel. Kemmett v. Craig, 62. 

People ex rel. Kieley v. Lent, 93. 


INDEX OF CASES 


People ex rel. Lardner v. Carson, 
ln. i 

People ex rel. Leet v. Keller, 64. 

People v. Levy, 49 n. 

People ex rel. Newburg Savings 
Bank wv. Peck, 49”. | 

People ex rel. N. Y. Electric Lines 
v. Squire, 70 n. 

People v. O’Neil, 75n. 

People v. Parmerter, 63. 

People ex rel. Pumpyansky v. Keat- 
ing, 32, 35. 

People v. Quigg, 61 n. 

People ex rel. Quinn v. Feitner, 55 n. 

People v. Rontey, 75. 
People ex rel. Roosevelt v. West- 
chester County Supervisors, 61 n. 
People ex rel. Second Ave. R. Co. v. 
Coleman, 51. 

People v. Sheridan, 75. 

People ex rel. Shipston v. Thompson, 
128 n, 

People ex rel. Sloane v. Fallon, 49 n. 

opie ex rel. Smith v. Van de Carr, 
7 


People ex rel. Speight v. Coler, 61 x. 

People ex rel. Terbush & Powell vw. 
Dibble, 95, 96. 

ene ex rel. Trustees v. Dohling, 
Ln. 

People ex rel. Van Beuren & N. Y. 
Bill Posting Co. v. Miller, 101 ”. 

People ex rel. Van Dieren v. Moore, 


People ex rel. Van Heck v. Catholic 
Protectory, 75. 

Peters v. U. S., 50. 

Peterson v. Martino, 49 n. 

Petition of Knaust, Matter of, 41 n. 

Phillips wv. Mayor, etc., of N. Y. C.,, 
51, 52m. 

Poth v. Mayor, 46, 79, 80. 

Pratt Institute v. C. of N. Y., 49n. 


Queens Co. Water Co. v. Monroe, 
55. 


Racine v. Morris, 101i n. 

Reddish, Matter of, 62. 

Ryan v, C. of N. Y., Matter of, 61 n. 

Ryer uv. Prudential Insurance Co. of 
America, 49 n. 


Schieffelin v. McClellan, 61, 62 n. 


INDEX OF CASES 161 


Schieffelin v. Craig, 63 n. Waldo v. Winter, 109 n. 
Schnaier & Co., v. Grigsby, 101. Waldo v. Christman, 109, 110. 
Stryker v. Mayor, 58 n. Walters v. C. of N. Y., 1187. 
Wheelock, Matter of, 42. 
Troy Press Co., Matter of, 62n. Whipple v. Christian, 61 n. 


Worthington v. London Guaranty and 
Udall v. Trustees of Brooklyn, 58”.| Assurance Co., 34 n. 


Van Denburgh wv. Village of Green- | Zickler v. Union Bank and Trust Co., 
_ bush, 61 n. 50 n. 


GENERAL INDEX. 


Administrative Code, analyzed, gen- 
erally, 131, 132, 140-7; advocated, 
by Charter Revision Commission, 
1907-9, 141, after 1909, 146; con- 
demned by Legislative Joint Com- 
mittee on Charter, 145; defects in 
execution, 1909, 142- 4; disadvan- 
tages inherent in adoption simul- 
taneously with new charter, 146-7; 
distinguished from prior uses of 
conditional repeal, 140; local power 
to amend, under draft of 1909, 
143-4, fuller power desirable, 146, 
147; penal provisions, temporarily 
placed in 1909 draft, 74. 

Aldermen, see Board of Aldermen, 

Amendatory Act, of 1901, as name of 
charter revision of 1901, 18; see 
also Charter. 

Amendments, of charter, number and 
rate of passage, 19, Appendix A; of 
Consolidation Act, 10, 81. 

Arndt, W. T., The Emancipation of 
the American City, 86n. 

Ash, The Building Code of the City of 
New York, 79n, quoted, 102; The 
Greater New York Charter, annot., 
omissions by, 2n, policy in printing 
acts outside formal charter, 13n, 
sources of charter in Consolidation 
Act indicated, 17»; New York City 
Consolidation Act, as in force 1891, 
quoted regarding acts not amending 
Consolidation Act in terms, 10. 

Association of the Bar of New York 
City, see Bar Association. 

Attorney General, general laws in re- 
lation to ordinances construed, 
62; Municipal Empowering Act 
construed, 89; Optional City Gov- 
ernment Law construed, 127-8. 


Bar Association, of N. Y. C., charter 
of 1897 criticized by, 20; Commit- 
tee on Amendment of the Law of, 
criticizes general form of charter, 
21-3; civil service, state control of, 
approved, 635%”; conditional repeal, 
wider use of scheme of Building 
Code advocated, 20n. 


Bennett, Senator, bill proposing in- 
crease in local salary control, 120. 
Binkerd, R. S., Municipal Empower 
ing Act policy explained by, 86. 
Birdseye, The Greater New York 
Charter, lists sources of charter in 

Consolidation Act, 17 x. 

Black, Handbook on the Construction 
and Interpretation, of the Laws, 
quoted regarding effect of codifica- 
tion in repeal, 50”; quoted regard- 
ing relation of general and special 
legislation, 59 n. 

Blanket repealers and saving clauses, 


see Repea 
Bliss, G., 8n. 
Board of Aldermen, powers, over 
Building Code, 97- 104; over de- 


partmental organization, 126n; de- 
volution of, 54; over salaries, 113, 
114, 122. 

Board of Estimate and Apportion- 
ment, charter revision committee of, 
146 n; departmental organization, 
power over, 124n, 126n; retirement 
of employees, in relation to Munici- 
pal Empowering Act, 90; salaries, 
control of, 112n, 113, 114n, 122. 

Board of Statutory Consolidation, 
established, 6, consolidation of 
N. Y. C. laws by, advocated, 24-5; 
preparation of Digest of N. Y. c 
laws by, 25 n. 

Board of Supervisors, see Counties; 
see also Devolution. 

Board of Taxes and Assessments, as 
reat ae of devolution of powers, 
5. 

Boilers, inspection of, general law 
made flexible, 79. 

Bond issues, General Municipal Law 
provisions do not override special 
law, 62; by special acts, in relation 
to Municipal Empowering Act, 90. 

Borough presidents, 54, 55 

Brooklyn, legislation affecting, con- 
dition in 1875, 8; population of, in 
relation to N. Y. C, 14; Repub- 
lican legislators from, attitude to- 
ward increased local salary control, 
120”. See also Devolution. 


GENERAL INDEX 


Brooklyn Consolidation Act of 1888, 
repealers of, 56, 136. 

Brown, E. R., bills introduced, on 
local control of salaries and num- 
ber of employees, 121; “home rule 
amendment,” 125 and Appendix B; 
Municipal Empowering Act op- 
posed by, 85; see also Joint 
Legislative Committee on Finances 
of New York City. 

Buffalo, power to restrict street 
speaking under Municipal Em- 
powering Act, 92; population of, in 
relation to N. Y. C., 14; charter 
ae in relation to general law, 


Building Bureau of Manhattan, Re- 
port of, cited regarding revision of 
Building Code, 99n, 

Building Code, analyzed generally as 
example of conditional repeal, 97- 
104; adoption of, 98; confirmed in 
1901, 99; revision of, 99; uwuncer- 
tain scope of repeal under, 101-3; 
validity of, 100-1; as precedent, 84, 
Poi 1325139. 

Building Code of the City of New 
York, by Ash, quoted, 101-2. 

Bureaus, consolidation of, in N. Y. 
C., 124 0. 


Caution, as factor in charter revision, 
Jetoel6, 186153; 
Central Park West, 

_ tracks on, 58. 

Chamber of Commerce of N. Y., ob- 
jections to form of proposed char- 
ter, in 1900, 20, 21. 

Charter, meaning of term, 6, 7, 9, 18, 
SP adoption tof, 4,°5,.6;°7,°8,.9: 15, 
18; proposed drafts, 24, 73, 140-6. 


relocation of 


Charter commission, Greater New 
York Commission, 6, 52, 97, 98; 
Charter Revision | Commission, 


1900, 18, 104, 113, 114, 115, 116; 
Commissions of 1907-9 (Ivins), 
10n, 73, 74, 141, 142, 144; Joint 
Legislative Committee on Charter 
of N. Y. C. (Hammond), 145, 146; 
committee of Board of Estimate 
on, 146n; Commission of 1921-3, 
22 0. 

Cities of first class, see First class 
cities, 

Citizens’ Union of N. Y., Committee 
on Legislation of, reports cited, 


163 


24n, 77 n, 120n, 122; proposal of 
Pesce Of) Nw ¥. Go laws) 23; 


City Club of N. Y., administrative 
code endorsed by, 146; conditional 
repeal on wider scale favored 1900, 
141”; remarks of secretary on 
method of drafting charter in 1897, 
15; remarks of secretary on home 
rule, 86. 

City Court, proposed shift of pro- 
visions regarding to Consolidation 
Act 72 

City Vigilance League, conditional 
repeal on wider scale favored by, 
141 1. 

Civil Service Law, 2, 64, 65, 66, 67, 
69, 118 n. 

Civil Service Commission, of State, 
supervision by, 64, 65. 

Classification of cities, 14, 70-72; see 
also First Class Cities; Second 
Class Cities; Third Class Cities. 

Claims, equitable, under Municipal 
Empowering Act, 92. 

Code of Civil Procedure, in relation 
to Consolidation Act of 1882, 36, 
37 n, 38, 42 n, 44, 47; illustrating 
effect of general on special law, 49 
n, 61 n, 62 n, 63 n, 72, 73, 74, 75, 76. 

Code of Criminal Procedure, 36, 38, 
44, 47, 49 n, 73, 74, 75, 82, 144 n. 

Codification, repeal by omission in 
cases of, doctrine discussed in con- 
nection with N. Y. Consolidation 
Act of 1882, 48-52. See also Con- 
solidation of laws. 

Colonial legislation, repeal of, 5, 56 n. 

Committee, see Joint Legislative Com- 
mittee on Charter of N. Y. C., under 
Charter Commission, see also Joint 
Legislative Committee on Finances 
of N. Y. C.; Rules Committee. 

Committee on affairs of cities, joint 
hearings on charter, 21; of senate, 
action on home rule amendment, 
1922, 123, to supervise digest of N. 
Y. C. laws, 25 n. 

Committee on Amendment of the 
Law, see Bar Association. 

Committee on Draft, see Charter 


Commission, Greater New York 
Commission. 
Committee on Legislation, see 


Citizens Union. 


164 


Commissioner of Accounts, requests | Conservatism, 


ruling on salary control, 119. 

Commissioners of Statutory Revision, 
history of, 6 n; intention regard- 
ing N. Y. C. Consolidation Act, 23 
n; proposal regarding Consolida- 
tion Act and Code of Civil Pro- 
cedure, 72. 

Commission to inquire into courts of 
inferior criminal jurisdiction, policy 
regarding penal provisions of 
charter, 73. 

Compilation, of laws affecting N. Y. 
C., by commissioners authorized in 
1879, 8, 9; compared with Digest 
published in 1922, 25, 26, 27; pre- 
cedent for future action locally, 
150; unofficial compilations by 
city, 5, 7, 8; see also Consolida- 
tion of laws. 

Common law, as a source of city 
government, 79, 80. 

Communities, merged in Greater N. 
Y. C., see Devolution. 

Complexities, of statutory sources 
Of NS VOCS e2 82. loo=4e vin giao. 
8; illustrated, 15, 16; over-lapping 
of general and special law as a 
ig of, 79; criticized, 20, 21, 22, 

Comptroller, of State, Municipal 
Empowering Act construed by, 

n. 

Condemnation, procedure in, as illus- 
tration of force of prior law 
omitted by charter, 35. 

Conditional repeal of statutes, upon 
enactment of ordinances, analysis 
of term, 83, 84, 97, 100 n, 107; 
applications of, in past, 97-124, in 
future, 124-9, 138-151; Building 
Code as example of, 97-104, 107, 
139; designated charter sections, 
104-111; departmental reorganiza- 
tion, use in connection with, 124-9; 
use in Consolidation Act, 112 n; 
difficulties resulting from, 101-4, 
107-11, 139-40; in Inferior Crim- 
inal Courts Act, 114 n; Optional 
City Government Law as legal pre- 
cedent for, 126-9; ordinances, test 
of, 109, 110; salaries, local control 
of, 111-24; validity of, 99-101, 106- 
7, 129; wider use of suggested, 20 
n, 145, 146. 

Conference of Mayors, 85 n, 126 n. 


GENERAL INDEX 


as characteristic of 
charter revision, see Caution. 

Consolidation Act (of N. Y. C., 1882), 
8, 9, 35-52; amendment of, special 
acts not amending in terms, 10-15; 
amendment of unrepealed portions, 
19, 82; Building Code in relation to, 
102; charter, act itself a charter, 8, 
prior charters in relation to, 9, 
subsequent charters based on, 10, 
17, 34, 35; Codes of Civil and Crim- 
inal Procedure in relation to, 36, 
38, 44, 47, 72, 75; codification, rules 
in relation to repealing effect of, 
48-52; Common law in relation to, 
79; compilation of 1881 as basis of, 
9; Penal Law, 36, 75; repeal by 
omission, clauses recited, 36-37, evi- 
dences of intent, 38, 39, cases, 39- 
42; salary control under, 112n; 
temporary acts, policy regarding, 


11-12 39, 153. See also Brooklyn 
Consolidation Act. 
Consolidation, of communities, in 


Greater N. Y. C., see Devolution. 

Consolidation, of special New York 
City laws, advocated by Citizens’ 
Union, 24; intention of Commis- 
sioners of Statutory Revision, 23 
n; compilations distinguished, 4 
n, 7, 8, 27, 137; proposals in legis- 
lature, 24, 25; proposal to make 
new charter complete consolidation, 
137-8; proposal to require local 
consolidation incidentally to a new 
charter, 149-51; see also Revised 
Laws of 1813; Consolidation Act. 

Consolidation, of state statutes gen- 
erally, 4, 6, 78, 145.. 153, 

Constitution, of N. Y. S., classifica- 
tion of cities by, 70; counties, 
devolution of powers when wholly 
in city, 76; private and local bills, 
titles of, 51; proposed amendment, 
in relation to validation of bond 
issues by special acts, 90; royal 
grants, saving clause regarding, 56; 
special legislation for cities, 14; 
statutory consolidation directed by, 
6; of N. J., 14; of Penn., 14. 

Constitutional Convention of 1915, 
remarks in, .15,; 16, 

Construction, of municipal powers, 
legal rule regarding, construed by 
Greater New York Commission, 16; 
Municipal Empowering Act, possi- 


GENERAL INDEX 


165 


ble effect on, 91, 93; strict con-] Devolution, of powers of consolidated 


struction, modification of, McBain 
quoted regarding, 91n. 

Continuation, of prior law, as a gen- 

-eral policy of charter. revision, 3, 
17, 133-4; charters construed as 
continuation of prior law similar 
in substance, 29, 30, 31, 34; Con- 
solidation Act construed, 40. See 

- also Repeal; Devolution. 

Cornbury Charter, saving clause re- 
garding, 57; see also Royal grants. 

Coroners, 33, 117, 118. 

Corporation Counsel, of N. Y. C,, 

~ conditionally repealed sections con- 
strued, 106”; Municipal Empower- 
ing Act construed, 94; salary 
control provisions construed, 117, 
119, 120. 

Corporations, private corporations 
within Gr. N. Y. C., 27; early lack 
of distinction between public and 
private, 3n, 56n, 57 n. 

Counties, bills, nature of, 77, 78; 
submission to mayor, 77; contro) 
of salaries and number of employ- 
ees, 121, 122, 123; devolution of 
powers on city, 76, 81. 

County Law, 607, 66, 78, 82. 

Courts, legislation affecting, 72-86. 
See also Code of Civil Procedure; 
Code of Criminal Procedure. 

Crime, see Code of Criminal Pro- 
cedure; see also Penal Law. 

Cromwell, Senator, 121. 


Davies, A Compilation of Laws of 
the State of New York relating 
particularly to the City of New 
York, 5n. 

Davis, J. S., Essays in the Earlier 
Cale of American Corporations, 


nN. 
Delegation of legislative power, 89n, 
90 


Democratic, municipal platform of, 
regarding Municipal Empowering 
Act, 85%; local control of salaries, 
123; constitutional home rule pro- 
posals, Appendix B. 

Departmental organization, 
power over, 124m; proposed in- 
crease of, 125-6; Optional City 
Government Law in relation to, 
126-9. 

Detail, necessary, 130; see also Com- 
plexities. 


local 


‘Dwarris 


municipalities, 17, 52-6; difficulty 
of locating superseded communities, 
26; should be terminated, except 
proprietary rights, 151-2; of coun- 
ties, 76; of old N. Y. C., extended 
to Greater City, 31. 

Digest of Special Statutes Relating to 
is City of New York, etc., 25-27, 

Doctrine, of codification, see Consoli- 
dation of Laws; see also Construc- 
tion of city powers. 

Dongan charter, 7, 57, 58; see also 
Royal grants. 

Dougherty, J. H., dissents on submis- 
sion of administrative code, 142. 

on Statutes, cited 

repeal by omission, 40, 


on 


Edwards, G. W., New York as an 
Eighteenth Century Municipality, 
1731-1776, 3n, 5 n. 

Education Law, 2, 55, 66, 67, 69. 

Education, Department of, devolution 
of power on, 121. 

Election Law, 12, 66, 67, 69, 72. 

Elevated railroads, stands below 
stairs, example of non-repeal by, 
omission, 32-3. 

Elsberg, N. A., 142. 

Employees, control of salaries of, 
114”; control of, under Municipal 
Empowering Act, 92-3; group in- 
surance for, 95, 96; organized 
efforts regarding salaries, 114-6. 

Endlich, A Commentary on the Inter- 
pretation of Statutes, cited regard- 
ing effect of codification, 49 n. 

Expenditures, on behalf of charter 
revision, 15, 18; on Building Code 
revision, 99m; on Digest of Special 
Statutes, etc. 25n. 


Ferries, former conflict, 3; present 
power to acquire, 94n, 

Fire control, sections conditionally 
repealed in 1901, 104, 105, 110. 

First class cities, legislation for, 2, 
66, 69, 70. 

Franchises, power to grant, for gas- 
lighting purposes, 34n, 35; saving 
clauses regarding, see Repeal. 


“Gaynor Charter,” 21, 24. 
General Business Law, 66, 67, 69. 


166 


General City Law, 2, 62-4, 66, 69, 
82, 84-5. 

General legislation, for cities, exis- 
tence of, 2, 3, 59, 82; number of 
acts, 1910-9, 66-9; for cities in 
particular population groups, 13-14; 
70-72; special vs. general, normal 
rule, 59-62, exception in case of 
codifications, 49, problem of better 
adjustment, 78-9; recommendation 
regarding, 152-3; on rapid transit, 
14, 70-1. 

General legislation, for counties, 76-8. 

General Municipal Law, 2, 66, 69, 82; 
judicial interpretation of, in rela- 
tion to special laws, 62-4. 

“General welfare,” in Municipal Em- 
powering Act, recited, 87, con- 
strued, 96. 

Gerard, Treatise on the Title of the 
Corporation to the Streets, etc, 
58 n. 

Geneva, Municipal Empowering Act 
at reference to bond issue in, 
‘0-1. 

Glen Falls, Municipal Empowering 
Act construed with reference to, 
89 n. 

Governor, city salaries, Gov. Odell 
quoted, 115”; vetoes by, of special 
acts because of Municipal Em- 
powering Act, 89, 90”; of proposal 
to codify laws relating to N. Y. C., 
24; county bills, policy regarding 
submission to city, 77. 

Greater New York, see special head- 
ings under. 


Hammond charter, see Joint Legisla- 
tive Committee on the Charter of 
INS BGS 

Haste, as characteristic of charter 
revision, 3, 15, 18, 153. 

Heads of departments, salary control 
by, 112-3. 

Highway Law, 61 n, 66, 67, 69. 

Hoffman, Treatise upon the Estate 
and Rights of the Corporation of 
te: City of N. Y. as Proprietors, 

nN. 

Home rule, constitutional, iii, 86, 123, 
125, Appendix B; see also McBain. 

Home Rule Law, see Municipal Em- 
powering Act. 


Index, see Official Index of Uncon- 
solidated Laws. 


GENERAL INDEX 


Inferior Criminal Courts Act, charter 
provisions repealed by, 73; salary 
control under, 114. 

Insurance Law, 66, 67, 68 n, 69. 

Insurance, for city employees, 95, 96. 

Intelligence offices, law affecting not 
repealed by omission from Consoli- 
dation Act, 39-41. 

Ivins, see Administrative Code; see 
also Charter Commission. 


Joint Legislative Commitee on the 
Charter of N. Y. C., 144-6. 

Joint Legislative Committee for the 
investigation of the Finances of 
ee ey ete a ha Map, 

Jones and Varick, revision of N. Y. 
S. laws, 4. 

Judicial interpretation, necessary to 
determine meaning of charter, 3, 
23, 31-2; see also Repeal; General 
Legislation; Consolidation of laws. 

Judicial organization, legislation af- 
fecting, 72-6. 

Justice, administration of, legislation 
affecting, within N. Y. C., see 
Judicial Organization; Code _ of 
Criminal Procedure; Code of Civil 
Procedure; Penal Law. 


Kent, The Charter of the Ciiy. of 
N. Y., quoted regarding legislative 
power over charters, 56”, 571. 

Kent and Radcliff, compilation of, 4. 

Kings County, 81. 

Kingston, Municipal Empowering Act 
in relation to, 89n. 


Labor Law, 66, 67, 68, 69, 100. 

Law department, of N. Y. C., reports 
cited, regarding special legislation, 
79, Appendix A; see also Cor- 
poration Counsel. 

Legislative Drafting Bureau, of N. 
YG 240: 

Legislation, see General Legislation; 
Special Legislation. 

Licensing, charter sections on, listed 
for conditional repeal, 104-5; of 
employment offices, 39-41. 

“Tocal affairs,’ in Municipal Em- 
powering Act, recited, 86; con- 
strued, 94-5. 

“Tocal Bill,” constitutional restric- 
tion regarding titles of bills con- 
strued, 51-2. 


GENERAL INDEX 


Low, Seth, remarks on charter by, 


15-6. 


McAneny, G., 99 n, 146 n. 

McBain, H. L., American Municipal 
Progress and the Law, quoted, 85 
n, 91n; The Law and the Practice 
of Municipal Home Rule, cited, 
85 n. 

Mayor, salary control, 113, 114; see 
also Veto. 

Milk, power to establish municipal 
milk distributing plant, Municipal 
Empowering Act as basis for, 94 m. 

Miller, R. P., 99n. 

Mitchel, J. P., on administrative code, 
146; attempt to veto county bill, 77 
n; veto of bill proposing partial 
control over salaries, 121. 

Montgomerie charter, 4, 7, 57n, 58; 
see also Royal grants. 

Motor bus lines, power to establish, 
Municipal Empowering Act as basis 
for, 94, 95, 96. 

Motor Vehicle Law, 60n. 

“Municipal affairs,’ in Municipal 
Empowering Act, recited, 86, con- 
strued, 94-5. 

Municipal Court Act, 72, 114 n. 

Municipal Court Code, 49n, 73. 

Municipal Empowering Act, 84-97; 
advocated, 85, 86, 88; analysis of 
provisions, 86-8, of effect, 96-7; 
enlarged powers. upheld, 92-3, 
denied, 93-7; legislative history of, 
85; statutes, power to supersede, 


Municipal Explosives Commission, 
106 n. 

Municipal Government Association, 
85n, 86, 126 n. 

“Municipal purpose,” in Municipal 
Empowering Act, recited, 87. 

Municipalities, absorbed in Greater 
New York, see Devolution. 


National Municipal Review, quoted, 
86 n, 88 n. 

New Jersey, special legislation for- 
bidden by, 14. 

New York, New York City, see word 
following or special subject head- 


ings. 

Niagara Falls, Optional City Gov- 
ernment Law construed with refer- 
ence to, 128. 


167 


North Tonawanda, power  wnder 
Municipal Empowering Act, 92. 
Nuisances, sections affecting condi- 

tionally repealed, 105. 


Official Index to the Unconsolidated 
Laws of the State of N. Y., 26n. 
Olean, Municipal Empowering Act 
construed with reference to street 

openings in, 90. 

Olney, P. B., 8. 

Omission, effect of, under charter of 
1901, 30; examples of non-repeal by 
omission, 32-5; under Consolidation 
Act of 1882, 36-52; rule regarding, 
in cases of codification, 48-52. 

Opinions, see Attorney General; Cor- 
poration Counsel. 

Optional City Government Law, for 
Second and Third Class Cities, 
126-9, 139. 

Ordinances, in Building Code, 97-104; 
of consolidated municipalities, con- 
tinued under Greater City, 54; 
judicial notice of, 101; statutes, 
duplicated by, 151; treatment of, in 
event of consolidation of special 
laws, 150; see also Conditional 
repeal. 


Park Board, 55. 

Parkinson, T. I., advocates consoli- 
dation of N. Y. C. laws, 24n. 

Peabody, F. F., 21 n. 

Peckham, N. H., 20. 

Penal Law, 6n, 66, 67, 69, 73, 74, 75, 
76, 82, 144 n, 152. 

Pennsylvania, special legislation for- 
bidden by constitution, 14 7. 

Peterson, A. E., New York as an 
Eighteenth Century Municipality, 


Nn. 

Plant and Structures, Department of, 
as a partial example of conditional 
repeal, 124. 

Plumbers, examination of, general and 
special law regarding, 63. 

Police Department, 54. 

Poor Law, 66, 67, 69. 

Population, legislation for cities with- 
in certain groups, 13-14; 70-72. 

Potter, on Statutes, 40. 

Practice acts, 73 n, 76. 

Prior legislation, see Continuation; 


Repeal. 
Private bill, 51. 


168 GENERAL INDEX 


Proceedings of Academy of Political 
Science, cited, Jan., 1915, 86; April 
1915, 99 n, 146 n. 

Proceedings of Conference for Good 
City Government 1906, 15; 1910, 
146 n. 

Property, rights of city, as a reason 
for caution in charter revision, 3; 
saving clauses regarding, 56, 57, 58, 
136, 137 n, 152; private, in ‘relation 
to persistent effect of so-called tem- 
porary Gates 12,° 36, 

Pryor, J. 

Public Health cae 66, 67, 69. 

“Public and municipal purpose,” in 
Municipal Empowering Act, re- 
cited, 87. 

Public Officers Law, 66, 82. 

Public Service Commissions Act, 66, 
71. 

Purchasing, establishment of central 
bureau, example of complexity of 
statutory sources, 16. 


Queens county, 76, 81. 


Railroad Law, 66, 69. 

Rapid Transit Act, 2, 70, 71. 

Rapid transit employees, licensing of, 
Municipal Empowering Act as basis 
for, 94n. 

Record, see Statutory Record of Un- 
consolidated laws, etc. 

Repeal, under Brooklyn Consolidation 
Act, 56, 136-7; under charters of 
1897 and 1901, policy of, 17, 18, 
clauses recited, 29, 30, effect of, 32, 
33, 34, 35, disadvantages in copying 
in any new charter, 133-5; under 
Consolidation Act of 1882, 35-48 ; 
doctrines of repeal by omission in 
cases of consolidation of laws, 48- 
52; under Revised Laws of 1813, 
5; specific repealers, 18, 21 n, 135. 

Report_of Commuttee on Legislation, 
see Citizens’ Union. 

Report of the commissioners appomt- 
ed under Chapter 594 of the Laws 
of 1880, with a Draft of the Revi- 
sion, etc., In, 46. 

Report on a Study of the Effect of 
Mandatory Legislation upon the 
Budget for the Year 1915, 119 n. 

Republicans, of Brooklyn, local salary 
control, 122 

Retirement system, of N. Y. C., in 
relation to Municipal Empowering 
Act, 90. 


Revised Laws of 1813, adopted, 4 
basis of subsequent charters, 6, 7 
repeal under, 5. 

Revised Statutes of 1827-30, 6n, 7; 
example of repeal by omission in 
codification, 49. 

Revision, of statutes, see Consolida- 
tion. 

Richmond County, 81. 

Rights, see Property. 

Rochester Conference for Good City 
Government, remarks on drafting 
charter of 1897, 15 n. 

Royal grants, in relation to Revised 
Laws of 1813, 4; as sources today, 
56-8; saving clauses regarding, 
should be confined to proprietary 
rights, 152. 

Ruling Case Law, quoted, 49n, 50%. 

Rules Committee, of N. Y. Assem- 
bly, 122 


we wo 


Sanitary Code, 106, 131. 

Salaries, fixing by local authorities 
despite provisions of statute law, 
114-20; increase of local power pro- 
posed, 120-4; in counties, 78. 

Saving clauses, see Repeal. 

Schenectady, Municipal Empowering 
Act in relation to, 95, 96. - 

Searchlight, see Citizens’ Union. 

Second Class cities, 70, 92 n. 

Second Class Cities Law, 92n., 

Senate Committee on aftairs of cities, 
duty of, in preparation of digest of 
Neo YC. laws, 324) 25; in (ERE 
Testimony, 8n. 

Simplification, alternative methods 
surveyed, 132-3. 

Sinking Fund Commissioners, 54. 

Sky signs, 102-3. 

smith, Cosou 2a, 

Special legislation, constitutional pro- 
visions regarding, 14, 70, 71, 72; 
enactment of, rate of passage before 
1880, 8, passage of special acts 
outside Consolidation Act, 1882-96, 
105; since 1897, 19, Appendix A; 
Municipal Empowering Act in rela- 
tion to number of, 89-91; see also 
Veto; General Legislation. 

Special and Local Laws affecting 
Public Interests in the City of New 
York, 8, 9, 26, 27. 

Stage lines, see Motor bus lines. 

State of, see name following. 

Statutory Construction Law, 49 n, 66. 


ee ee 


GENERAL INDEX 


Statutory Record of Unconsolidated 
Laws, 5, 25. 

Stoddard, Assemblyman, 121. 

Street Cleaning Department, 54. 

Streets, closing of, by law outside 
charter, 32, 35; control of, sec- 
tions conditionally repealed in 1901, 
105; Consolidation Act in relation 
to omitted legislation affecting, 42; 
Municipal Empowering Act in rela- 
tion to procedure for the opening 
of, 90; in relation to power to relo- 
cate tracks in N. Y. C,, 94; royal 
Smog as a source of power over, 

igs: 


Strict construction, see Construction 
of municipal powers. 

Sulzer, W., see Governor. 

Supplement to Statutory Record of 
Unconsolidated Laws, 25n. 

Suspensory veto, of special city bills, 
see Veto. 

Sutherland, Statutes and Statutory 
Construction, quoted, 48n, 49n, 
50 2, 59 n, 


Tanzer, L. A., 86n, 88 n. 

Tax Law, 49 n, 66, 67, 69. 

Tax sale, as illustration of persistent 
effect of law, 36. 

Taxes and Assessments, Board of, 55. 
Taxpayers’ suits, relation of general 
law and charter provisions, 63 n. 
Temporary legislation, Consolidation 
mck of 1882. omits bY 22, 39% 
nature of, 12, 13; passed between 
1910-9 without amending Consoli- 
dated Laws of State, 69; recom- 
mendation regarding future provi- 

sion for, 153. 
Tenement House Law, 66, 67, 69, 82. 
Theatre tickets, resale of, ordinance 
to control in N. Y. C., 93-4. 


169 


Third class cities, 70. 
‘Ladd. Jo Kies Zi 2: 


Uncertainties, see Complexities; Re- 
peal; General Legislation, 

Unconsolidated, see Statutory Record. 

Utica, Municipal Empowering Act 
in relation to ordinance of, 92. 


Van Ness and Woodworth, revised 
Laws of 1813 drafted by, 4 

Veto, by Governor, of item proposing 
compilation of N. Y. laws, 24; 
of special bills, because of Munici- 
pal Empowering Act, 89, 90n; of 
special city bills since 1900, Ap- 
pendix A. 

Veto, local suspensory, constitutional 
provision for, 14”; county bills in 
relation to, 77; salary control bill 
vetoed as inadequate, 113; 114n; 
use of summarized statistically, 
Appendix A. 


Wagner, Senator, bill for reconsoli- 
dation of N. Y. C. laws introduced, 
24 n, 

Water Supply, Gas and Electricity, 
Department of, 54. 

Watertown, Optional City Govern- 
ment Law construed in relation to, 
128-9. 

Whitman, Governor, 
bills, 77 n. 

Whitney, W. C., 8. 


special county 


Yonkers, Municipal Empowering Act 
in relation to regulation of Sunday 
exhibitions, 93. 


Zoning power, in N. Y. C., 84n. 


VITA 


The author of this monograph was born in Brooklyn, 
May 29, 1890. He was prepared in the Rutherford 
(N. J.) High School and graduated from Columbia 
College in 1912, receiving the degree of Bachelor of 
Arts “with high honors.” Subsequently he pursued 
graduate studies under the Faculty of Political Science 
of Columbia University, doing his major work under 
Professors H. L. McBain and T. R. Powell and Dr. 
(then Professor) C. A. Beard. In 1913 he was given 
the degree of Master of Arts. From 1913 to 1917 he 
was instructor in government in Columbia College, and 
he resumed this position in 1919. 


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